Craig Murray: book, documents and Crown Copyright (major update 11 July 06)

The battle between Craig Murray, controversial former Ambassador to Uzbekistan, and an increasingly baffled Foreign & Commonwealth Office, has taken a curious, perhaps worrying, new turn.  Craig's book, 'Murder in Samarkand' , has finally been published despite the FCO's fierce objections to some of the things in it, mainly official documents that Craig wanted to quote in full in the book.  Apparently the documents in question were all in the public domain via the Freedom of Information Act, and all have been available for some time on the Web.  Despite this, the FCO now claims that their publication is in breach of Crown Copyright and has forced Craig's publisher to remove them.  The government's lawyers are now threatening Craig with legal action unless he also removes the documents from the Web by tea-time on Monday.

There's a very good account of all this, with links to the pertinent texts and a useful discussion of the peculiar issue of Crown Copyright, on Tim Worstall's blog, here, so there's no need to repeat it here, except to recall that in January I put on my website a summary of an exchange of views I had had over several weeks with Craig Murray about the issues raised by his experience and in his book, including a notably courteous reply by Craig to some of the points I had made.  This might be worth re-reading now that the book is finally out, if somewhat bowdlerised, and a fresh row is brewing over the copyright issue.  The latter should keep teams of lawyers happily occupied (and paid) for years. 

But there's a more general issue here:  if the government succeeds in using Crown Copyright to suppress the availability of official documents that are already publicly available through Freedom of Information applications or leaks, this would be a useful precedent for all kinds of censorship to limit the availability of information that the government of the day doesn't want us to have.  Beware!

Update, 11 July 06:  Now see an especially interesting and apparently well informed article on this in today's Guardian, "Former ambassador posts censored passages from memoir on website".   David Leigh zeroes in on the key and perhaps most controversial assertion in the letter to Craig Murray from the Treasury Solicitors:

Even if a document is released under the Freedom of Information Act or the Data Protection Act, that does not entitle you to make further reproductions of that document by, for example, putting them on your website.

As Craig has pointed out, this poses a fundamental challenge to the media and indeed to everyone who wants to resist a further serious erosion of our freedom of expression:  if a newspaper (or anyone else for that matter) receives documents under the Freedom of Information Act, is it (or he or she) really not entitled to make further reproductions of it for publication either in print or on the web, as the Treasury Solicitors are now solemnly claiming?  If they are right, it drives an enormous hole (I shun references to a coach and horses) through the middle of the Act, rendering it virtually useless.  Whether the same thing applies to material released to an individual under the Data Protection Act (such as some of the material released to Craig and now placed on his website) will be an interesting and important question that one hopes will ultimately be resolved in Craig's favour.  Other material, if any, not released under either FOI or DPA but in effect leaked and 'published' without authority on the Web may be in a different category again, but that would seem to be governed by the Official Secrets Act rather than by the law of Crown Copyright, the latter surely pertinent only to material actually published (or 'released'?) by the State.  

The other fascinating and important aspect of the Guardian article is that it reproduces at length much of the most sensitive and controversial material which the FCO required to be deleted from Craig's book, or substantially re-drafted before publication, and which the FCO is now seeking to force Craig to remove from his website.  Quite apart from the fact that the material has now been made available on several other websites besides Craig's, and that Craig has no means of requiring the owners of those websites to remove it even if he wanted to, the fact that some of it has now appeared in a national daily newspaper, both in print and on the newspaper's website, surely makes the government's efforts at Web censorship utterly pointless.   

It was brave of the Guardian to publish in this way, even if only on page 7, material which the government is seeking  to suppress.  It implicitly asserts the right of a newspaper to publish material available on the Web even if the government is trying to use legal means to get it removed.  Usefully, the Guardian sets out its own legal advice in support of what it has done:

Lawyers say Mr Murray would be able to argue a defence of public interest for his own non-commercial disclosures, as would the media if quoting from the government documents on his website while reporting on current news events.

Let's hope, for all our sakes, that the Guardian's lawyers are right.  As I have made clear here in comments on this post and elsewhere, I differ from Craig in accepting the need for some kind of legal protection against leaking or other unauthorised publication for certain categories of sensitive material that can't be put into the public domain without unacceptable damage to the public interest on a scale that outweighs the desirability of making public as much official material as possible, the principle underlying the FOI Act.  But when the government has released material to anyone under any legal system, FOI or DPA, it's surely in the public domain with government agreement and the recipient ought to be able to do what it likes with it.  Did the Treasury Solicitors really understand the implications of what they wrote to Craig?


3 Responses

  1. Carl Lundquist says:

    I never failed to be amazed at the concept of government copyright being tolerated much less being enforced.  The US positions is simple.   To quote Wikipedia:

    "17 U.S.C. § 105, withholds copyright from all publications produced by the United States Government, and its agents or employees while in their employment. All such work is therefore in the public domain in some sense. The specific language is as follows:

    Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. "

    Secret designation is possible but not very defensible in practice.   The effect is that work produced by the public's money is the public's property.

    You all have simply got to change that.


    Carl L/LA

    Brian adds:  An important and highly relevant point, for which many thanks, Carl.  This of course refers to 'publications' by government; and it's questionable whether the material that Craig Murray wishes to put on the Web, and wanted to include in his book, was material that had been published by the government, as implied by the government now invoking Crown Copyright.   I continue to believe, reluctantly, that there has to be a way to protect from publication some at least of the material generated (but not 'published') by government, mainly in the traditional way by classifying as Restricted, Confidential, Secret or otherwise material whose publication would undermine the necessary relationship between ministers and officials in the process of policy advice and formulation, where complete frankness is indispensable and where advice must not be contaminated by fear (or, worse, hope) that it will play badly if splashed over the media;  and also material provided by foreign governments on condition of confidentiality which would dry up if the provider thought it liable to be made public by the recipient.  Other kinds of material relating to investigation of crime or terrorism, and some kinds of commercially sensitive information, also clearly need to be protected from publication.  But the Official Secrets Act is there for precisely these purposes, and Crown Copyright ought not to be abused as a method of avoiding the perils and pitfalls of the OSA.   In the case of Craig Murray's documents, if it's really the case that all of them have been 'published' already in response to Freedom of Information applications, there seems no possible justification for trying to prevent their being made available in a book or on the Web.  If they were originally made public not under the FoI Act but by being illegally published on the Web, then it's probably right to seek to limit their further dissemination, but only if accompanied by action under the OSA against the original leaker, requiring a jury trial and a jury decision on the rights and wrongs, together with guidance from a judge on the legalities. 

  2. Peter Harvey says:

    Official documents published by the Spanish State (laws and regulations, lists of vacancies and requests for applications for them, invitations to tender, etc.) may be copied and distributed freely, provided that this is not done for payment. I imagine (though I haven't checked) that the same is true of the regional Gazettes.

    Brian adds:  I suspect that the key words here are "published by the Spanish State".  I wonder whether the British government would regard the documents in the present case as having been 'published by the State'.  A good deal may hang on this.

  3. matt says:

    Hi Brian,

    On ID cards  this  from the Sunday Times, leaked memos on how it going horribly wrong may be of interest to you.Cheers

    Brian writes:  Thanks for this, Matt.  Yes, I read it with mounting optimism.  But if the whole sinister thing collapses, what irony that it will have failed because of the practical difficulties and cost, not because it has been swept away into the dustbin of history by a storm of protest over the gross intrusion into our right to privacy! 

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