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The Creative Commons project in Scotland: new

Creative Commons is an international non-profit organisation which offers a licence structure which permits free re-use of copyright materials on conditions such as proper attribution. This is an alternative to traditional copyright provisions which forbid re-use without explicit consent. The aim is to help authors and others to share and build upon creative works. Something over fifteen million web pages are already published under Creative Commons licences, and the number is growing fast. Those who are interested in the widest possible distribution and re-use of their work, rather than limiting its circulation by seeking payment for its use, should consider using CC licences: they are described in this factsheet. A full discussion of the project, its aims, and its implementation is in 'International Commons at the Digital Age' (pdf).

Until recently, Creative Commons licences were not jurisdiction-specific; indeed, the licence for re-use of material on this site is not. There are now editions for a number of jurisdictions, and a Creative Commons Scotland project to port these licences to Scots law has been established. The project was formally launched on 2 April 2005, when Professor Lawrence Lessig, the chair of Creative Commons, spoke publicly in Edinburgh on "Cyberlaw: who controls access to ideas on the net": Press release. I am joint project lead with Professor Hector MacQueen.

On 24 June 2005, we set up a new website for Creative Commons Scotland, run jointly with the Creative Commons England and Wales project. We also have a mailing list, again jointly for the United Kingdom projects.

The most up to date draft Scottish licence, with explanation of changes from the original, will be published here as it is revised. On 31 May 2005, v1.4.2 was sent to Creative Commons for final comment. We intend to have a full range of licences available for use in Scotland by the summer.

Contact me to note interest, or to feature CC-licensed material on the website here; comments of general interest may also be sent to the mailing list.


Data protection and freedom of information: the public law

Data protection and freedom of information are issues which have so far generated little litigation in Scotland (perhaps the leading recent exception was the series of SPH litigations against Scottish local authorities seeking access to information, of which the latest is SPH Holdings v City of Edinburgh Council: the decree granted was in terms of the first three of the conclusions of the summons in pdf here. Data protection law, however, has become constantly relevant in all areas of law, partly because compliance is so widely ignored (see guidance note for advocates). Thus, for example, the Information Commissioner has recently ruled that the production of accident records not relating to the pursuer in a reparation action may be a breach of the Act; a recent survey showed that almost half of European business websites lacked a necessary privacy policy; and it would be naive to believe that the Code of Practice on employee monitoring, issued in June 2003, is not widely broken. On the other hand, phoney claims that the Data Protection Act bars some otherwise acceptable action, such as parental filming at school plays, have become common.

The European Court has held (Lindqvist, 6 November 2003) that the mere act of referring, on an internet page, to a person by name with minimal personal details constituted the processing of personal data by automatic means and was thus a criminal offence in the absence of notification on the Data Protection Register, rejecting the argument that "private individuals who make use of their freedom of expression to create internet pages in the course of a non-profit-making or leisure activity are not carrying out an economic activity and are thus not subject to Community law".

In 2005 freedom of information law is set to become at least equally significant, not only to the public sector but to all who have dealings with it; the new legislative structure was put fully in place in January 2005. There are five main statutory bases for FOI in Scotland: see this flowchart for their relationship:

 

Freedom of information requests and the Scottish legal system:

General guidance on data protection and freedom of information law

Here is a guide to the Data Protection Act (pdf) and, newly published, an updated guide to Freedom of Information in Scotland (pdf), both by Derek O'Carroll, (e-mail here) an advocate called to the Bar in 2000 with a particular interest in information law, on which he has written a number of publications; the latter replaces this earlier edition.

This is the revised legal advice on the Data Protection Act (but predating the decisions in (Lindqvist and Durant v FSA) of the Information Commissioner.

Some useful links are below; note again that both the UK and Scottish FOI Acts and EIRs apply in Scotland, but to different bodies.


The major official sites with links to primary material:


Some particularly useful private sites, in no particular order:

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