Regulation 10(5)(c) - Intellectual property rights

What this exception means#

The authority is saying that disclosing the information would, or would be likely to, cause substantial prejudice to intellectual property rights. IP rights include copyright, database rights, and patents.

This exception is relatively uncommon. It is not enough to show that information is subject to IP rights - the authority must show that disclosure would actually cause harm to the rights holder. Since disclosure under the EIRs does not transfer ownership of IP rights, the rights continue to exist after disclosure.

Unlike FOISA, all EIR exceptions are subject to a public interest test and must be interpreted restrictively. There is a presumption in favour of disclosure.

What the authority must show#

For this exception to apply, the authority must demonstrate that:

1. The information is protected by IP rights - and identify whose rights and what type
2. Disclosure would cause substantial prejudice to those rights - not just that they would be technically infringed
3. The harm could not be prevented by the rights holder enforcing their IP rights after disclosure
4. Even if the exception applies, the public interest in withholding outweighs the public interest in disclosure, applying the presumption in favour of disclosure

Things to check#

• Whose IP rights? The authority must identify whose intellectual property rights would be affected. If the information was created by authority staff, the authority itself holds the IP rights - and it would be unusual for a public authority to argue that disclosing its own information harms its own IP rights.

• What type of IP right? Copyright, database rights, and patents are different. The authority should identify which type of right applies. General claims about “intellectual property” without specifying the type are insufficient.

• Would disclosure actually cause harm? Disclosure under the EIRs does not transfer IP ownership. The rights holder retains their rights and can still enforce them. “Fair dealing” provisions also allow requesters to use IP-protected information for limited purposes with appropriate attribution. The authority must show real harm, not just theoretical infringement.

• Could the rights holder enforce their rights? If someone misuses disclosed information, the IP rights holder can take legal action. If infringement would be easy to detect and enforce against, it is harder to argue that disclosure itself causes substantial prejudice.

• Is this about a public contract? If the information relates to work commissioned by a public authority, check the contract terms. Where the authority commissioned work, it may own the IP rights. Even where a third party owns the rights, the public interest in transparency of public spending is strong.

• The public interest test is essential. Even if the exception applies, the authority must demonstrate that the public interest in withholding outweighs the public interest in disclosure, applying the EIRs’ presumption in favour of disclosure.

Use the interactive tool#

Answer the questions below to check whether regulation 10(5)(c) has been properly applied to your request.