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

When disclosure of environmental information would substantially prejudice intellectual property rights.

Intellectual property rights#

Regulation 10(5)(c) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice intellectual property rights. In environmental requests, this usually means copyright or database rights.

In plain terms#

The authority is saying that the information is protected by someone’s intellectual property rights - typically the copyright of a third party - and that releasing it would cause real harm to the rights holder.

You ask SEPA for a flood risk map that was compiled using data licensed from a commercial provider. SEPA withholds the underlying dataset, arguing that disclosure would breach the licence terms and substantially prejudice the data provider’s intellectual property rights in the database.

The legal detail#

The relevant IP rights in the environmental context are mainly:

Copyright - covering reports, maps, databases, survey data, and other original works (governed by the Copyright, Designs and Patents Act 1988)
Database rights - protecting the investment in gathering, verifying, and presenting data (governed by the Copyright and Rights in Databases Regulations 1997)

The authority must show four things to apply this exception:

The information is protected by IP rights
The IP rights holder would suffer harm from disclosure - it is not enough just to show that IP rights exist
The harm would result from infringement of the IP right - for example, the rights holder losing control over how the information is used
The harm could not be prevented by enforcing the IP rights after the event

An important point: regulation 5(3) of the EIR(S) says that any rule of law preventing disclosure “shall not apply.” This means that a public authority making information available under the EIR(S) does not infringe the IP rights by doing so. The IP rights still exist after disclosure, and the requester remains bound by copyright law in what they do with the material - but the act of disclosure itself is lawful.

This is a substantial prejudice exception, so the authority must show real harm of demonstrable significance.

The public interest test#

The public interest test applies. Where the environmental information is important for public health or safety, the balance may favour disclosure even if IP rights are engaged. See What can they refuse? for how the public interest test works under the EIR(S).

How it’s used in practice#

This exception arises when environmental information has been created by a third party - a consultant’s environmental impact assessment, a contractor’s survey data, or licensed datasets. Information created by the authority’s own staff is generally owned by the authority (since IP rights created in the course of employment belong to the employer), so this exception rarely applies to in-house material.

The Commissioner has issued only two decisions on this exception. In Decision 049/2016, SEPA withheld flood map data obtained under licence. The Commissioner accepted that disclosure would substantially prejudice the IP rights of the data provider and that the public interest lay in maintaining the exception - if the licence terms were breached, licensors might refuse to provide data to SEPA in future, harming SEPA’s ability to assess flood risk.

In Decision 141/2018, Highlands and Islands Enterprise withheld an external report on foundations of various tows in the Cairngorms. HIE argued the report was subject to copyright and that disclosure would harm the author. The Commissioner could not accept this - HIE had not explained how disclosure would actually cause harm to the rights holder.

How to challenge it#

Ask who owns the IP rights. If the authority created the information itself, it likely owns the rights and can release the material without prejudice to anyone’s intellectual property.

Challenge the claimed harm. The rights holder must actually suffer substantial prejudice from disclosure. A bare assertion that the material is “subject to copyright” is not enough. Ask what specific harm would occur and why the rights holder cannot enforce their rights after the event.

Is the information already public? If similar information is freely available, IP-based withholding is hard to sustain.

See What to do if refused for the full process.

You can also use our interactive challenge tool for this exception to work through these questions step by step and draft a review request.

Good to know: The emissions carve-out in regulation 10(6) does not apply to this exception - it can be used even where the information relates to emissions. There is no direct FOISA equivalent to this exception. Under FOISA, copyright and IP issues are not a standalone ground for refusal, though section 33 (commercial interests) may cover some of the same ground.