Access to and Use of Publicly Available Information
Authors: Leith Philip 
Published: May 2011

Public information presumes that the information is somehow public and, presumably, that this can be utilized by members of the public. Unfortunately, things are more complex than this simple definition suggests, and we therefore need to look at various issues relating to public information which limit access and usage, for example, the nature of privacy, sharing information within government, court records, ownership of public information, and freedom of information. The exemplars dealt with later in the article will demonstrate the legal constraints upon the usage of public information in a digital environment and help raise awareness of such limitations. Public information cannot be formally defined (as a list of items, say) except to indicate it is that information which has historically been available to the public in print form and/or through some generally open process. No formal definition is possible because this depends to a very large extent upon cultural differences. For example, tax returns are viewed as private documents in the United Kingdom open only to the tax authorities (unless otherwise authorized, e.g., in criminal proceedings) whereas in Sweden they can be accessed by any member of the public. Furthermore, the source of public information may also vary: what information is produced by a public authority in one country may not be so carried out in another. The legal constraints upon access and use of public information include the following: • Privacy/confidentiality of public data • Sharing and processing of public data collected for divergent purposes • Freedom of information rights to public data • Copyright and database rights in public data Access to public information may be enabled through a formal public register, through statutory mechanism, or other less formal means. Note that being accessible does not necessarily mean that users are free to use this information in any way they wish: copyright licenses in particular are not always passed along with access rights, so that the public may inspect a document but may not use it in other ways (such as republishing). Reasons for this are obvious: the collection of data by government can be expensive and there can be opposition to subsidising commercial activity from the public purse. In the United States, federal materials are explicitly excluded from copyright protection, but this is rarely the case in Europe (see www.hmso.gov.uk for the UK situation). Another example is that it is possible in most countries to attend local criminal courts or peruse local newspapers and draw up a database of prosecutions in the local area. The database could include information on drunk drivers, sexual offenders, and burglars, and it would be possible to include a wide variety of information—all of it, clearly, of a public nature. Indeed, such activities have been common for many years where credit agencies have collected information from courts on debtors and made this available on a commercial basis. But there are questions: Is all court-based information public? What limitations might be found in some countries and not in others to the dissemination of this information? See Elkin-Koren and Weinstock Netanel (2002) for the general tendency toward commodification of information and Pattenden (2003) for professional confidentiality where it impinges upon public service. On a more mundane level, judgments from most European courts are copyright of the relevant government or agency. In the United Kingdom, differing again, there is some dispute over whether the judge or Court Service owns the judgment, and frequently the only text version of a judgment is copyright of the privately employed court stenographer. Thus the publicly available information which is being discussed here is that which emanates from a public authority and can be accessed by members of the public, but will usually have some constraint and limitation on how it can be reused by the public. We are interested in outlining these constraints.