Legal Advice on Fair Use to Hargreaves Review : FOI enquiry

Way back last year when the Hargreaves Review was published I noticed  a little footnote that Prof. Lionel Bently had provided an analysis to the review on “fair use”. No further info given. That set a  two part FOI request in motion.  Part one was for Prof Bently’s analysis – which eventually did get published. The other part of my request was for the legal advice provided to the Review by “government lawyers” – and that dear reader was another story.. Let’s pick it up from the point of my request to the Information Commisioners Office.

19th January 2012 request to ICO for review of IPO decision

Dear Sirs

Please find attached completed 2011 FOIER Complaints form. Also attached file ICO review docs.doc which contains the following:

 1. Copy of information request 05 June 2011

 2. Copy of initial response from IPO and refusal notice 4 July 2011

 3. Copy of request for internal review 30 August 2011

 4. Copy of the IPO internal review decision 23 September 2011

 The request for review concerns the decision of the Intellectual Property Office to withhold information about legal advice given by UK government lawyers to the Hargreaves Review of Intellectual Property. This information was withheld under FOI exemption 42(1).

 I appreciate the importance of Legal Professional Privilege to the efficient working of government. However, after time for reflection, I still feel that in this case the public interest remains best served by the decision of the ECJ in Sweden and Turco V Council and Others cited in the ICO Commisioner’s decision FS50402010 of 20 September 2011

 “In that respect, it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.”

 Yours faithfully

 Peter Carroll

info forwarded to ICO in file  ICO review docs.doc

1. Copy of information request 05 June 2011

 —–Original Message—–

From: pete carroll [mailto:pete.carroll@scibella.com]

Sent: 05 June 2011 18:34

To: foi

Subject: Hargreaves IP review final report – legal analysis provided to panel

Dear Sirs,

 In May 2011 the IPO published the following report “Digital Opportunity – A review of Intellectual Property and Growth An Independent Report by Professor Ian Hargreaves May 2011”

 In section 5.18  it states

 “Evidence considered by the Review on the legal arguments about the feasibility of introducing Fair Use into the EU legal framework and so into the UK is violently diverse. It ranges from those who argue that it could, in effect, be achieved within the terms of current EU law,viii to those who see this as definitively impossible.

 The footnote, viii refers to “viii Analysis provided to the Review by Professor Lionel Bently”

 In the following section 5.19 it states:

 “The advice given to the Review by UK Government lawyers is that significant difficulties would arise in any attempt to transpose US style Fair Use into European law.”

 Could you please provide me with any documents, correspondence or e-mails, transcripts of conversations, minutes of meetings,  relating to:

 a)       The “analysis provided to the Review by Professor Lionel Bently” referred to in footnote viii of section 5.18 of the report

 b)       The ” advice given to the Review by UK Government lawyers”  referred to in section 5.19 of the report

 I realise that it might be felt that this information falls within the exemptions set out in section 35 of the Freedom of Information Act 2000-

 35 (1) (a) the formulation or development of government policy

 35 (1) (c) the provision of advice by any of the Law Officers or any request for the provision of such advice

 However; I would point out that these exemptions in section 35 of the FOI 2000 are subject to the public-interest test.  I would argue that there is a strong public interest in knowing the information, in terms of analysis and advice, provided to the Hargreaves Review about a core issue, fair-use and how it could, or could not, operate within the  UK/EU legal framework.

 This issue was certainly widely covered in the media, where it was reported, repeatedly, that it was not possible to introduce fair use in the UK because it did not “fit” with overriding EU legislation. 

The Hargreaves report itself states:

 “Recommendation 1. Evidence. Government should ensure that development of the IP System is driven as far as possible by objective evidence” 

  The release of the information I am requesting would demonstrate to the public that an evidence-based IP system is, in fact, the government’s intention. 

 Peter Carroll

05 June 2011

2. Copy of initial response from IPO and refusal notice 4 July 2011

 From: foi [mailto:foi@ipo.gov.uk]

Sent : Monday 4 July 2011 12.59

To: ‘pete carroll’

Cc: foi

Subject: RE: Hargreaves IP review final report – legal analysis provided to panel

 Dear Mr Carroll

Thank you for your email dated 6 June 2011 requesting a copy of the analysis provided to the Hargreaves Review by Professor Lionel Bently and the advice given to the Review by UK Government lawyers referred to in section 5.19 of the report and any related documents etc.

I can confirm that the Intellectual Property Office (IPO) holds the information you are seeking. With regard to Professor Bently’s analysis, we are withholding that information at this time since we consider that the exemption under section 22(1) of the Freedom of Information Act applies to it, because it is information intended for future publication.

Section 22 is a qualified exemption so the IPO is required to balance the public interest in releasing or withholding the information.  

The implementation work in the wake of the Hargreaves report is the immediate priority of IPO officials tasked with this work, commanding their full attention and resources.  As the IPO intends to publish the analysis you seek on its website at around the end of July, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing it at this time.

 Having considered the public interest, the IPO’s decision is therefore to withhold until formal publication.

 With respect to the legal advice, we are withholding that information and related internal discussion since we consider that the exemption under section 42(1) applies to it because it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. 

In deciding not to supply this information, we have balanced any public interest there may be in the release of the particular information against the public interest in maintaining and applying legal professional privilege and in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.  Given the very substantial public interest in maintaining the confidentiality of legal advice, the argument in favour of withholding this information outweighs any public interest in disclosure in this circumstance.

 We appreciate that this response may be disappointing to you.  If you are unhappy with the way in which your request for information has been handled you may seek an internal review within two months of the date of this letter. Reviews will usually be carried out within twenty working days but if at the end of that time we are unable to respond, we will write to you explaining the reasons and giving you a new date. Such a request should be sent to the address below:

 

Chief Executive

Intellectual Property Office

PO Box 49

Cardiff Road

Newport

South Wales

NP10 8YU

 

or email box49@ipo.gov.uk

 

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

 

Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire,

SK9 5AF.

 

Telephone: 0303 123 1113

Website: http://www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

<redacted>

Records officer

Intellectual Property Office

Tel: <redacted>

 3. Copy of request for internal review 30 August 2011

 

From: pete carroll [pete.carroll@scibella.com]

Sent: Tuesday 30 August 2011 11.04

To: ‘box49@ipo.gov.uk’

Subject: R: Request for internal review of LPP decision

 Dear Sirs,

 Thank you for your email of 4 July appended below.

 My FOI request was in two parts

 a) Analysis provided by Professor Lionel Bently to Hargreaves Review

b) Advice given to the Review by UK Government Lawyers

 

Professor Bently’s analysis has now been published, as promised, as a submission to the Review:  http://www.ipo.gov.uk/ipreview-c4e-sub-bently.pdf

 Professor Bently & I are both somewhat surprised that his submission was not published, at the time, along with the others. However, I am now satisfied that this part of my request has been dealt with fully. 

 Regarding the second part of my request, advice given to the Review by UK government lawyers, I have given this much thought and tried to inform myself as best as possible about the scope of legal professional privilege (LPP) and the application of the exemption available under section 42(1) of the FOI act 2000. I appreciate that:

 ” LPP is intended to provide confidentiality between professional legal advisers and clients to ensure openness between them and safeguard access to fully informed, realistic and frank legal advice, including potential weaknesses and counter-arguments”

 Source: ICO LPP guidance  http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/legal_professional_privilege.pdf

And also that if the exemption for LPP is engaged:

 “The Tribunal recognised this in Bellamy v Information Commissioner (EA/2005/0023; 4 April 2006), where it said: “there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest”.

 However, I still believe that in the case of my request regarding the advice given to the Hargreaves Review that there is indeed a powerful justification for, at least, some disclosure of fuller reasoning on why UK Government lawyers advised the Review  “that significant difficulties would arise in any attempt to transpose US style Fair Use into European law.” Therefore, I must ask for an internal review of your decision to withhold all information about the advice given to the Hargreaves Review by UK government lawyers as you consider this information is covered by exemption 42(1) of the FOI act 2000.

 I trust that it would be helpful to your conduct of the internal review if I set out some of my thinking.

 1. Is section 42(1) engaged? Yes.

 2. Which category of LPP is involved Litigation Privilege or Legal Advice Privilege? Legal Advice Privilege (LAP).

 3. Within the legal advice given to the Review was there factual information likely to be in the public domain e.g. reference to, or provision of copies of, relevant UK & EU legislation, published opinions etc? This is a matter for the internal review to decide on. I believe that any such factual information would not be covered by LAP and could be disclosed, although obviously the advice pertaining to such information would be subject to LAP and, subject to the public interest test, could be withheld or redacted.

4. Who was the client to whom the legal advice was supplied- the Review panel members, the panel members and supporting officers within the IPO, the whole IPO? This is a matter for the internal review to decide upon.

 5. Has any waiver of LAP occurred by communication from the client to third parties? Again,this is a matter for the internal review to decide upon. I am aware that under LAP partial disclosure of information does not necessarily mean that privilege is lost but I also note from the ICO LPP guidance that “the partial disclosure may be relevant when considering the public interest in disclosure.”

6. Public interest test. 

I feel that there is a novel factor in play here which is the Government response to the Hargreaves Review recommendation that “evidence should drive policy”

 “To deal with the second concern, the Government will in future give limited weight in IP policymaking to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice.”

Source: http://www.ipo.gov.uk/ipresponse-full.pdf   p3

I realise that the evidence being considered in this part of the response is primarily economic but in the area of Intellectual Property, legal and economic evidence is inextricably interlinked- a point addressed in supporting document J to the Hargreaves Review

Dnes A, 2011 A Law and Economics Analysis of Fair Use Differences Comparing the US and UK, Report for the Review of IP and Growth

 http://www.ipo.gov.uk/ipreview-doc-j.pdf

 I think this presents the IPO with a dilemma. With the publication of Professor Bently’s analysis we now have on one side a open and transparent body of evidence setting out the “flexibilities available to UK law”. On the other we have advice very probably of a quasi-evidential nature, and of equal quality, from the UK government lawyers but because of the application of legal advice privilege it can be, at best, only partially disclosed. In the light of the Government response above, to which body of evidence should most weight to be given in policy making?

Another problem could arise in the coming months with the efficient drafting of detailed proposals for new legislation. The government response to Hargreaves recommendations on copyright exceptions is:

“the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors:..”

 Drafting these exceptions may, or may not, involve reference to issues covered by the legal advice given to the Review. Can this advice be made available to those involved with drafting proposed legislation without a waiver of LPP? This point returns to who was the client for whom the advice was prepared and will they be the same people who will be responsible for drafting legislation?

 Also, once drafted and published for consultation, if the legal advice to the Review has been relied on, to what extent can the reasoning behind the proposals be communicated to the public in line with the Government desire for evidence based development of a future IP legislative framework?

I can only say that I think the public interest is best served by the fullest disclosure possible of the legal advice to the Review.

Peter Carroll

Date: 30 August 2011

4. Copy of the IPO internal review decision 23 September 2011

 From: <redacted>

Sent: Friday 23 September 2011 15.31

To: ‘pete.carroll@scibella.com’

Subject: FOI Review

 Attachment : Letter to Mr P Carroll.docx

 Dear Mr Carroll,

 Please see the attached letter in response to your FOI review.

 Kind regards,

 <redacted>

 (Attached letter…..)

 From the Director of Business Support,

 By e-mail,

 23 September 2011

 Dear Mr P Carroll,

 Re- FOI Internal Review.

 I refer you to your e-mail dated 30th August 2011, in which you requested an internal review of the handling of your FOI request dated 5th  June 2011  for the Legal analysis provided to panel Hargreaves Review.

 A thorough review of the handling of your request and the decision to withhold information under Section 42(1) of the Act has been carried out.  The arguments set out in your letter have been considered during the review

 Section 42(1) explains that information will be exempt from disclosure, if the information requested is protected by legal professional privilege. 

 In response to the questions raised in your review request I confirm that the information requested is covered by legal advice privilege and the client for whom the advice was prepared is the IPO.

 It is my assessment that there substantial public interest in maintaining the confidentiality of this legal advice. The argument in favour of withholding this information outweighs any public interest in disclosure in this circumstance.

 The conclusion of the review is that the original decision to withhold the information under Section 42(1) of the Act was and remains appropriate.

 I that realise that the outcome of this review will disappoint you. If you wish to pursue this any further, I suggest that you contact the Information Commissioner at:

The Information Commissioner’s Office,  

Wycliffe House,  

Water Lane,  

Wilmslow,  

Cheshire  SK9 5AF.

Yours sincerely,

<redacted>.

Business Support Director

 which brings us back to the reply from the ICO  

5. 27 March 2012 ICO decision 

By email:  

27 March 2012

 Case reference number FS50431599

Dear Mr Carroll,

 Freedom of Information Act 2000 (FOIA)

Intellectual Property Office (IPO)

 I am writing in relation to your freedom of information complaint against the IPO. The Commissioner has now considered your complaint in detail and his findings are set out below.

 Background

 You made the following request for information to the IPO on 5 June 2011:

 

‘Could you please provide me with any documents, correspondence or e-mails, transcripts of conversations, minutes of meetings, relating to:

 

 a) The “analysis provided to the Review by Professor Lionel Bently” referred to in footnote viii of section 5.18 of the report

 

b) The “advice given to the Review by UK Government lawyers”  referred to in section 5.19 of the report.’

 The IPO responded on 4 July 2011 refusing to provide the information within the scope of part 1 of your request under section 22 of the FOIA (information intended for future publication). It refused to provide the information within the scope of part 2 of your request under section 42(1) of the FOIA (legal professional privilege).

 You requested a review of the IPO’s refusal to provide the information it holds within the scope of part 2 of your request on 30 August 2011. On 23 September 2011 the IPO responded upholding its original decision.

 Your complaint

In your complaint you argued that the public interest favours disclosure of the information the IPO has withheld under section 42(1) of the FOIA.

 In the course of this investigation the Commissioner has taken into account all of the arguments you have made and the arguments made by the IPO, the content of the withheld information and wider documentation relevant to the request including the Hargreaves Review Report[1] and Professor Bently’s evidence.

 Section 42 – The legal professional privilege exemption

Section 42(1) provides an exemption for information in respect of which a claim to legal professional privilege (LPP) could be maintained. This exemption is subject to a public interest test.

 There are two types of LPP; advice privilege and litigation privilege. For advice privilege to apply, the information must be confidential, made between a client and a professional legal adviser acting in their professional capacity, and made for the sole or dominant purpose of obtaining legal advice.

 The Commissioner considers that the advice provided to the IPO by government lawyers was for the sole purpose of obtaining legal advice on the future direction of copyright legislation for the purposes of the Hargreaves Review. Consequently, the Commissioner considers that the information attracts legal advice privilege and that, at the time of the request, the IPO had not waived its privilege. Therefore, the exemption under section 42(1) of the FOIA is engaged and the Commissioner has gone on to consider the public interest test.

Public interest factors in favour of maintaining the exemption

 

The IPO has argued that there is a very substantial public interest in favour of maintaining the confidentiality of legal advice in general and in the specific circumstances of this case.

The Commissioner accepts that legal professional privilege is a well established and accepted convention that protects confidentiality in the lawyer/client relationship, and in the advice sought from and given by legal professionals. He considers that the rationale behind the concept of ensuring frankness between lawyer and client serves the wider administration of justice and there is an inbuilt public interest in the maintenance of LPP.

 The Information Tribunal recognised this in the case of Bellamy v Information Commissioner (EA/2005/0023; 4 April 2006) stating:

 

‘there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest.’

 The Commissioner also considers that at the time of the request the legal advice was recent and live as the government was actively considering its response to the Hargreaves Review. You made your request in June 2011 and the government’s response to the Hargreaves Review was published in August 2011. This adds additional weight to the inherent public interest in maintaining the exemption.

 Public interest factors in favour of disclosure

 You have argued that there is a novel factor to consider in this case as the government’s response to the Hargreaves Review accepts the recommendation that evidence should drive policy and that this evidence should be open and transparent. You quoted the following:

 ‘To deal with the second concern, the Government will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice.’[2]

You stated that in the area of Intellectual Property legal and economic evidence is inextricably linked and provided a link to a paper that supports this position.

 The Commissioner notes that the IPO has now issued its guidance on what constitutes open and transparent evidence.[3] It is clear from this guidance that the IPO considers that transparent and open evidence used to inform public policy should be clear, verifiable and able to be peer-reviewed. However, he considers that there is an important distinction between evidence used to support public policy and legal advice. He does not consider that the government’s response to the Hargreaves Review or the IPO’s guidance can be read to suggest that legal advice used in the development of policy should be published.

However, the Commissioner agrees with your argument that there is a public interest in disclosure of the legal advice provided to the IPO on which the following statement was based:

‘The advice given to the Review by UK Government lawyers is that significant difficulties would arise in any attempt to transpose US style Fair Use into European law.’[4]

If the advice on which this statement was based were to be published this would improve transparency and allow the public to enter into more informed debate about the future of copyright legislation. This is especially the case as at the time of the request the government had yet to issue its response to the Hargreaves Review.

Notwithstanding the above, the Commissioner notes that there was an opportunity for individuals and organisations to provide evidence to the Hargreaves Review and that a number of respondents took this opportunity to comment upon the viability of fair use, or similar provisions, in the UK. As recognised in the Hargreaves report:

‘Evidence considered by the Review on the legal arguments about the feasibility of introducing Fair Use into the EU legal framework and so into the UK is violently diverse. It ranges from those who argue that it could, in effect, be achieved within the terms of current EU law,viii to those who see this as definitively impossible.’

For example, the evidence provided by Professor Bently is specifically mentioned in the Hargreaves Report and it is clear that the review considered a range of opinions in relation to the introduction of fair use, or similar provisions, in the UK. The Commissioner considers that had this not been the case this would have increased the value in transparency and furthering public debate. However, in the specific circumstances of this case, the Commissioner has taken into account the fact that there have been a number of opportunities for individuals and organisations to contribute to the debate and provide alternative views to those reached by the Hargreaves Review. He also considers that the outcome of the Hargreaves Review makes clear the overall conclusion that was reached on the basis of all of the evidence provided to it, including the legal advice in question. It stated:

 

‘The Review considered whether the more comprehensive American approach to copyright exceptions, based upon the so called Fair Use defence, would be beneficial in the UK. We concluded that importing Fair Use wholesale was unlikely to be legally feasible in Europe and that the UK could achieve many of its benefits by taking up copyright exceptions already permitted under EU law and arguing for an additional exception, designed to enable EU copyright law to accommodate future technological change where it does not threaten copyright owners.’[5]

 Therefore, he does not consider that there has been an overall lack of transparency in terms of the explanation of the evidence that was considered or the conclusions reached in the Hargreaves Review.

Balance of the Public Interest Test

The Commissioner has considered all of the factors outlined above. He has concluded that the public interest in maintaining the exemption outweighs the public interest in favour of disclosure. The inherent public interest in maintaining LPP in this case is afforded extra weight due to the recent and live nature of the legal advice. Although there is a public interest in transparency and enhancing public debate, in the specific circumstances of this case, the countervailing public interest arguments are not strong enough to equal or outweigh the strong public factors in favour of maintaining the exemption.

Next Steps

 

I appreciate that you may be disappointed with the outcome of your complaint. If you have any queries or would like to discuss this matter please don’t hesitate to contact me on the number below.

If you disagree with the outcome of your complaint and would like to appeal to the Information Tribunal, the Commissioner will need to issue a formal Decision Notice in this case. This is likely to reflect the decision outlined above and would not require the IPO to take any steps. Please inform me if you require a decision notice by 10 April 2012. If I do not hear from you by this date your complaint will be closed.

Finally, I would like to thank you for bringing this matter to the attention of the Commissioner.

Yours sincerely,

 <redacted>

Senior Case Officer

Complaints Resolution

Information Commissioner’s Office


[1] Hargreaves, I., Digital Opportunity – A Review of Intellectual Property and Growth, May 2011,  http://www.ipo.gov.uk/ipreview-finalreport.pdf, p 46.

[2] HM Government, The Government Response to the Hargreaves Review of Intellectual Property and Growth, August 2011, http://www.bis.gov.uk/assets/biscore/innovation/docs/g/11-1199-government-response-to-hargreaves-review, p 3.

[3] Intellectual Property Office, Good Evidence for Policy, http://www.ipo.gov.uk/consult-2011-copyright-evidence.pdf.

[4] Hargreaves, I., Digital Opportunity – A Review of Intellectual Property and Growth, May 2011,  http://www.ipo.gov.uk/ipreview-finalreport.pdf, p 46.

[5] Hargreaves, I., Digital Opportunity – A Review of Intellectual Property and Growth, May 2011, http://www.ipo.gov.uk/ipreview-finalreport.pdf, p 5.

6. 10 April  2012 email to ICO

Dear Mr <redacted>

Thank you for your email and attached letter of 27th March communicating to me the Commisioner’s decision. Obviously, I am disappointed that, on the balance of public interest, the LAP of the IPO should be upheld. I was rather hoping that the ECJ judgement on Sweden and Turco V Council and Others ( cited in the ICO Commisioner’s decision FS50402010 of 20 September 2011) might have tipped the balance towards disclosure of “quasi-evidential” legal advice. However, I do not think there would be any purpose in taking my complaint further to the Information Tribunal and therefore we can consider the case closed.

 May I take this opportunity to thank both the ICO and the IPO on the courteous and prompt manner in which this complaint has been handled. I only hope that for both parties that it has not proved a complaint of a vexatious nature but one accepted as intended, a request to clarify where the balance of public interest now lies in an environment of increasing transparency in government policy making in all areas.

 Lastly, I assume that it would now be all right to post the bi-lateral correspondence between myself and the IPO and the ICO covering this case on a blog that I run. I would redact any names (e.g. yourself) to comply with privacy concerns.

Yours sincerely

Peter Carroll

7.  16 April 2012 email back from ICO

Case Reference Number FS50431599

Dear Mr Carroll,

Thank you for your email of 10 April 2012 in relation to your complaint against the Intellectual Property Office.

I certainly do not consider that your complaint was of a vexatious nature and I appreciate the quality of the evidence and supporting documentation that you provided in support of your complaint.

I don’t have any objections to you publishing the correspondence between yourself and the Commissioner in relation to this matter.

This case will now be closed.

Yours sincerely,

 <redacted>

Senior Case Officer

Complaints Resolution

Information Commissioner’s Office

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