date: Tue, 21 Jul 2009 16:10:42 +0100
from: "Palmer Dave Mr \(LIB\)" <David.Palmer@uea.ac.uk>
subject: RE: McIntyre EIR request (FOI_09-44; EIR_09-03) - Draft  response
to: "Jones Philip Prof \(ENV\)" <P.Jones@uea.ac.uk>, "Mcgarvie Michael Mr \(ACAD\)" <k364@uea.ac.uk>

   Phil/Michael,

   The claim of database rights is really only relevant if we are releasing information and
   wish to restrict the subsequent use of that information.  Copyright does not 'trump' our
   obligations under FOIA and we cannot use any copyright in material to prevent it's
   disclosure.  What we CAN do however, is attempt to limit the uses made of released material
   (assuming of course that we have rights in the material released).

   The remedy for breach of copyright are the remedies provided for by law but actually
   getting damages, for example, can be a tricky thing - it's one thing to claim copyright,
   and another to enforce it - helps if you have lots of lawyers and money!



   Cheers, Dave
     ______________________________________________________________________________________

   From: Phil Jones [mailto:p.jones@uea.ac.uk]
   Sent: Tuesday, July 21, 2009 2:03 PM
   To: Palmer Dave Mr (LIB); Mcgarvie Michael Mr (ACAD)
   Subject: Re: McIntyre EIR request (FOI_09-44; EIR_09-03) - Draft response

      Dave,
         The letter is fine.
      Your idea about 'copyright' of the database is an excellent one.  Over the last 30
     years
      we have reworked the database on a number of occasions - every 3-5 years, so
      re-extending for another 15 years is fine. I'll have retired by then anyway!

       Do we need to come up with a form of words elaborating on database rights? Or
      can we just declare this? I'm presuming we don't have to register this with anybody
      as would be the case with a patent?
      Can we go with the letter then invoke this copyright, or should the letter be modified
      to encompass your 'copyright' and 'database right' ?
      I wouldn't want to have to put this 'copyright' to the test in a Canadian court. If we
      send them the file and they break the copyright, can we then refuse thereafter?
       Apologies that nothing is ever simple.
      Cheers
      Phil
     At 13:22 21/07/2009, Palmer Dave Mr \(LIB\) wrote:

     Phil/Michael,
     A draft response along the lines discussed yesterday.  I would expect an almost
     immediate appeal of this decision by Mr. McIntyre.
     Phil, as your concern is the publication of the requested information, I wonder if a
     possible alternative is to release it but place conditions on it's use.  This will ONLY
     work if UEA has some rights in the data itself or in the database.  'Copyright' in the
     contents of a database would require some personal creative input by ourselves to the
     data or database that would render it different from preceding external versions and
     'original'.
     However, even if the contents aren't 'original', there is a 'database right' where the
     contents of the database are assembled as the result of substantial investment in
     obtaining, verifying, or presenting it's contents.  It is the framework, not the
     contents, that attracts the rights.  These rights exist for 15 years from the completion
     of the database BUT any substantial change to contents will 'renew' the database rights
     for another 15 years.  The owner of database rights has the right to prevent the
     extraction or reuse of all or a substantial portion of the database.
     There is 'fair dealing' in database rights to the extent that anyone has a right to
     extract & reuse an insubstantial portion of the database (not really defined in law but
     it's very small) for any purpose, or where the portion is substantial, extract and use
     data for non-commercial research or private study. What can't be done is re-issuing this
     information to the public under a different guise.
     The upshot of all of this is that, if we have a 'database right' in this information,
     then we can release it BUT insist on our exclusive right to re-use the information - BUT
     the issue is actually 'enforcing' those rights...... more difficult in practice than in
     law or theory....
     Just thought I would proffer this as an option in place of the refusal and the
     inevitable appeal.
     Cheers, Dave
     <<Response_letter_DRAFT.doc>>
     ____________________________
     David Palmer
     Information Policy & Compliance Manager
     University of East Anglia
     Norwich, England
     NR4 7TJ
     Information Services
     Tel: +44 (0)1603 593523
     Fax: +44 (0)1603 591010

     Prof. Phil Jones
     Climatic Research Unit        Telephone +44 (0) 1603 592090
     School of Environmental Sciences    Fax +44 (0) 1603 507784
     University of East Anglia
     Norwich                          Email    p.jones@uea.ac.uk
     NR4 7TJ
     UK
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