Peter Stead v The Information Commissioner

The Appellant, an author, was concerned about the discussion of proposals to change copyright law to permit the use of copyright materials for the purposes of training and developing AI systems without acknowledging the rights of the creators or owners of copyright material, “Text and Data Mining (TDM)”.

There has been long-standing public debate about this process and HMG has been through several rounds of developing policy in this area. In October 2021, the IPO (a government executive agency) published a consultation entitled Artificial Intelligence and IP: copyright and patents this explored expanding the scope of an amendment which had already been made to the Copyright Designs and Patent Act 1988. In June 2022 the government published its response to the consultation an intention to ”introduce a new copyright and database exception which allows TDM for any purpose”. In February 2023 HMG shifted its position and indicated an intention to consult further.

The Appellant had made a previous request of the IPO for information about the 2022 proposal and after some interactions he made the request to the Intellectual Property Office which is the subject of this appeal on 20 May 2024, with further refinements on 17 June and 29 July:

“My request is for materials which are explicitly about the previously proposed plan to “introduce a new copyright and database exception which allows TDM [Text and Data Mining] for any purpose.” For example, documents which directly discuss the pros and cons of specifically that policy move. Therefore, I think it would be helpful to be more prescriptive about the search term you should use. It should be, exactly: “Copyright and Database Exception”. I think materials which include this will inevitably be about the aforementioned proposed policy move of an all-purpose copyright and database exemption for TDM when you consider the dates.

Shall we therefore change the date range to 29th of October 2021 to 30th of November 2022 inclusive?”

On 21 August the IPO supplied certain documents (with redaction of personal information) and withheld other information based on exemptions in FOIA: sections 21 (information reasonably accessible by the applicant), 27(1)(a) and (b) (international relations), 35(1)(a) formulation or development of government policy), 41(1) (information provided in confidence) and 42(1) (legal professional privilege).

The Appellant accepted that certain material was already available to him, however he complained to the Respondent IC challenging the reliance on other exemptions. The Commissioner investigated and on 4 February 2025 issued his decision notice IC-332481-X0S2. In this decision he explored the history of the policy formation process over several years, a decision to proceed by way of a code of conduct, the change of government and consequent further changes of approach. He concluded that while the policy process was live at the time of the request the balance of public interest lay in favour of disclosing the material withheld under the s35 exemption relating to formulation and development of government policy.

The IC considered that the exemptions relating to international relations, legal professional privilege and information provided in confidence were engaged and were sufficient to justify withholding the information protected by these exemptions. The public interest did not justify disclosing the names of various persons contained within the information.

The Appellant argued that the potential changes envisaged by these proposals were in breach of the internationally agreed law of copyright (the Berne Convention) and were an interference with the rights to control the material which individuals produced. He argued that it would cause catastrophic human and economic damage to the UK, with millions adversely affected and “The proposed move at the heart of this case attracted widespread criticism from within Parliament and across affected industries” He argued that the decision notice had not taken account of the impact on privacy and the environmental impact. He challenged the reliance upon sections 27, 41, 42 and 40(2) to withhold information.

He submitted that s42 (legal professional privilege) could not be relied upon to withhold information because (he asserted) the proposal itself was in breach of international law as well as the Human Rights Act, s27 (harm to International relations) because the proposal would be in breach of treaty obligations, s41 (information in confidence) because the proposal upended rights and were not necessary in a democratic society, accordingly the duty of confidence could not prevail, s40(2) should not prevent the disclosure of an official with “senior” in his job title.

In a subsequent submission the Appellant speculated as to the content and potential consequences of any legal advice, and the gravity of the issues meant that privilege should be over-ridden. He “did not believe that s27” – protection against harm to international relations was engaged, arguing that the proposal would do great harm to international relations, and the public interest favoured disclosure in revealing “if the UK unilaterally cheats on the treaty obligations”. He repeated his arguments with respect to information in confidence and seniority of staff.

In responding to the appeal the IC relied on his decision notice. He further submitted that the question of whether the TDM proposal was compatible with the UK’s treaty obligations was not within his scope (and by extension the tribunal’s scope) to determine. He noted that at the time the balance of public interest fell to be determined – 21 August 2024 when the IPO responded to the request – HMG had moved away from the TDM proposal which is the subject of the request and accordingly the public interest in disclosing withheld information was diminished.

In considering the reliance of s27 - harm to international relations, the IC noted that the Appellant had not challenged his finding that harm to international relations would result from disclosure, and that there was a significant public benefit in the IPO being able to hold confidential discussions with governments and international organisations, further the IPO had a public strategy on engagement with international partners – disclosure would prejudice those relations.

The IC noted that many civil servants below the Senior Civil Service, had “senior” in their job titles and they had some expectation that their names would not be disclosed.

The activities of major technology companies in respect of copyright material have been a subject of public scrutiny and debate for some years. In his submissions the Appellant has submitted a range of trenchant comments made by parliamentary committees on the issue. The nature and range of the debate is well understood in the public sphere. At the time of his request a further step had been taken by HMG in moving on from the policy position described in the request as the “previously proposed plan”. In response to the IC decision further information was disclosed. While an understanding of the evolution of policy is of value, the public interest in a policy which has been left behind is somewhat diminished.

On the other side of the ledger the disclosure would still do harm to international relations (s27), would represent a significant blow to legal professional privilege with its inbuilt interest in ensuring that individuals and organisations have confidence that the can obtain legal advice about their position in confidence as well as the ability of the IPO to hear the concerns of consultees in private. The disclosure of names of less senior staff adds nothing of weight to public understanding.

The decision of the IC is correct in law and this appeal is without merit.

The appeal is dismissed.