Environment Agency management system document: uncontrolled when printed [16/06/10]

Work Instruction
Charging for the re-use of Information and Know-how
Number: / 99_07 / Status: / Version 2 / Issue Date: / 13/03/08 / Review Due: / 13/06/08
Document Owner:
Document Author:
Primary Contact: / Stefan Carlyle
Chris Jarvis
Chris Jarvis / Post:
Post:
Post: / Head of Information Management
Freedom of Information Manager
Freedom of Information Manager
Approved by:
(as set out in Schedule B of the NFSoD) / Sandra Cavill
Chris Jarvis / Post:
Post: / Acting Head of Information Management
Freedom of Information Manager
Purpose: / To provide guidance to staff responding to requests for re-use of Information and Know-how, ensuring a consistent approach to the charges that should be levied for the provision of Information and Know-how to third parties.
Scope: / This Work Instruction supports Procedure: Responding to Requests for Information, ands specifically the Work Instruction: Licensing Information and Know-how.
It applies to all staff with responsibilities providing Information or Know-how in response to a request for re-use.
Related Documents: /
  • 93_07 Policy principles for Information and Know-how re-use
  • 400_04 Responding to requests for Information
  • 90_07 Licensing Information and Know-how
  • 384_04 Charging for access to Information
  • 384_04_SD01 Fixed price charging menu
  • 95_07 Responding to requests for Information and Know-how glossary

If you have any queries on the content of this document or suggestions for improvement, refer to the Primary Contact named above.
If any term or acronym used in this document is unfamiliar you might find the definition in the Glossary on Easinet: Information Resources > Glossary of Terms and Acronyms.

SUMMARY

The steps outlined below are to be followed to determine the appropriate charge for re-use of Information or Know-how.

Charges for re-use of Environment Agency Informationand Know-how are generally only applicable to commercial re-use licences. The exception to this rule is the non-commercial re-use of Special Data (see step 2 below). Therefore, references in steps 2 and 3below to ‘Commercial’ include thisnon-commercial exception.

STEP 1: DETERMINE THE COST RECOVERY CHARGE

Any re-use charge is made in addition to the appropriate Cost Recovery Charge made under the Work Instruction: Charging for Access to Information. The Cost Recovery Charge should include the costs of providing updates etc. over the whole period of the licence if appropriate.

Note that staff costs already included as Pooled Costs (see 95_07 Responding to requests for Information and Know-how glossary)should not be ‘double counted’ in this step.

STEP 2: DETERMINEINTERNAL COMMERCIALRE-USE CHARGE

AllCommercial re-use licences will include an Internal re-use charge. Individuals and not for profit bodies provided with Special Data will only be charged the Simple re-use charge, even if their usage is Complex[1]. Exceptions to these 2 general principles are:

  1. No re-use charge will be applicable to a Commercial user that is supplied with Information other than Special Data who affirms that they will only require read only rights, provided that they are supplied the Information with the Copyright Statement and Disclaimer.
  2. No re-use charge will be applicable to any customer that is supplied with Special Data [National Datasets[2]] under with the Copyright Statement and Disclaimer when the customer:
  • requests hard copy format or inspection and we choose to supply an electronic copy with the with the Copyright Statement and Disclaimer or
  • asks for an electronic copy but affirms that they only need read only rights and we decide that in assessing the form or format provisions of the Environmental Information Regulations, we are obliged to provide an electronic copy and do so with the Copyright Statement and Disclaimer.

When permission is given by the Standard Notice (Commercial), a fixed charge of £10 is made per request.

When the permission is given by any other licence, the associated Internal Commercial charge for either Simple or Complex usage, per licence, per year, is set out in ourFixed Price Charging Menu.

If the charge for the Special Data [National Datasets] requested has not yet been set, this will be determined by the FoI Team in accordance with the Work Instruction: Setting Charges for Information and Know-how, and then added to the Fixed Price Charging Menu.

When applying the Fixed Price Charging Menu to Know-how and/or Special Data (Model Input Data):

i.Establish the known[3] Environment Agency creation costs of the Know-how or Special Data [Model Input Data]. This could include processing of input data (survey, flows, LiDAR etc), our time, consultant costs, reports costs, QA etc.

In the case of Special Data [Model Output Data], establish the coverage of the specific attributes requested.

ii.If the request is for part of the model datadetermine the development costs on a pro-rata basis. For example if a model cost £500k to develop, but the request was only for 10% of the model’s coverage, then the associated development cost would be £50k.[4]

STEP 3: DETERMINE APPLICABLE DISCOUNT

The Fixed Price Charging Menu sets out where discounts are applicable to the Internal, Commercial re-use charge for Special Data [National Datasets[5]]. These are applied as follows:

Discount Type / Qualification / Determined By
Small no. of users / < 5 users
Full national datasets / Refer to discounted price in Fixed Price Charging Menu
Medium no. of users / < 10 users
Full national datasets
Internal, Commercialre-use in support of External, Commercial re-use of Special Data [National Datasets] / Special Licence Conditions limiting usage to preparation of an external product/service.
Full national datasets
Market entry/development licence / Special Licence Conditions limiting usage to preparation of new product/service.
Maximum 1 year or market entry, whichever comes first. / Discount set by Information Enterprise Centre (IEC) manager

The maximum Internal, Simple, Commercial charge for any Information or Know-how supply will be £15,000 per licence per annum.

STEP 4: DETERMINE ANY ADDITIONAL CHARGE FOR EXTERNAL COMMERCIAL RE-USE

All External, Commercial re-use licences need Internal usage rights. Therefore, the following charges for External, Commercial re-use will be in addition to the appropriate Internal re-use charges.

However, if the External, Commercial re-use produces insignificant revenue (i.e. where the proportion of our Information or Know-how against the total product/service multiplied by total income generated per annum is less than £500) we will waive external re-use charges.

Any previously agreed External, Commercial re-use charges set out in our Fixed Price Charging Menu must be applied if the usage and Information/Know-how are comparable. Any other External, Commercial re-use charge is based on a negotiatedreturn.

The single point of contact for the request is responsible for establishing an appropriate negotiating team, but will remain as the lead contact. Before commencing negotiations we will consider:

  1. A starting point of 20% of the income[6] derived from our assessment of the value that stems from our Information OR Know-how. We will adjust this to reflect:
  • market forces (up or down), taking into account:

what the product ‘looks’ like (e.g. table or report),

market volume,

potential for market growth/decline,

market value of service,

  • environmental benefits.

Any adjustments must be within any parameters set under the Scheme of Delegation or with specific approval if outside those parameters. The extent of any adjustments will be recorded on the confidential section of our Fixed Price Charging Menu.

  1. If sales to persons other than end users are proposed in relation to any request for re-use this must be negotiated so that either it is based on actual charges to end users or it approximates in some other way to the relevant percentage of retail price to end user for that Information or Know-how.
  2. Where we choose to apply a fixed fee per unit sale for particular Information or Know-how re-use we will do so by applying our charging principles to a reasonable and commercially realistic retail price. Such set charges will be added to our Fixed Price Charging Menu.
  3. Licensing of ‘Free’ Products/Services/Marketing:
  • A free product or service provided by a business will be deemed to be Commercial unless the contrary can clearly be shown to our satisfaction.
  • When we are satisfied that ‘free’ External supply of our Information or Know-how (i.e. no direct monetary return, e.g. free samples) or re-use of our Information or Know-how in marketing or sales literature is an appropriate way of generating Commercial sales of products containing our Information or Know-how from which we will receive appropriate returns, we will not charge extra for such External supplies.
  • When we are not so satisfied, we will assess the External, Commercial charge as appropriate, on the basis of:

market value of the product/service being provided,

the proportion of indirect revenue attributable to our Information or Know-how, i.e. the added value attributable to the usage of our Information or Know-how, and

such other mechanisms as is fair in all the circumstances.

STEP 5: DETERMINE ANY INDIVIDUAL CHARGES THAT ARE APPLICABLE

In addition, the following costs will be recovered when directly related to a specific re-use request, whether related to Internal or External re-use:

  1. Any Royalties due to third partieswhen they have Intellectual Property Rights in respect of the data provided (applicable to Commercial and Non-Commercial re-use)
  2. Any other marginal licensing costs (payableexternally or incurred internally) not covered by the Internal, Commercial charge or the Work Instruction: Charging for Access to Information (applicable to Commercial and Non-Commercial re-use).

AllRoyalties due to third parties under bullet point i. above must be based upon that party’s standard Royalty terms, conditions, charges and reporting requirements. Where such requirements are not available (i.e. the third party does not have standard terms/charges for the internal or external usage) negotiation with the third party is required to confirm the appropriate Royalty and conditions of use.

Subject to the above, general guidance for third party payments based upon percentage of the relevant Agency charge:

Payment for Internal re-use:

  1. Assess the internal usage annual charge.
  2. If the maximum Internal, Simple, Commercial charge (see step 4 above) has been applied then reduce the individual dataset charge pro rata to determine the figure against which third party percentage Royalties are payable.

Additional payment for External re-use:

  1. If external charges are made in respect of an approved product comprising more than one dataset this should be discussed with the appropriate third party.
  2. In the absence of any express agreement the relevant income per dataset from approved products should be calculated using the relative prices in the internal re-use of datasets section of the Fixed Price Charging Menu to calculate the proportion of the income that relates to a particular dataset.

EXEMPTIONS TO RE-USE CHARGES

The following situations set out exemptions to charges.

[Note: Unless stated otherwise, exemptions do not override any payments due to 3rd party Intellectual Property Rights or Contractual Rights. Therefore, any additional individual charges (see Step 5) may still need to be applied, depending on the circumstances.]

1. Media usage

We will waive our Internal, Commercial or External, Commercial charge for established Press and Media who have been issued with a Standard Notice (Media) in accordance with ourWork Instruction: Charging for Access to Information.

2. Special environmental benefit

  1. Where the following conditions are met we do not make any additional charge for External, Commercial re-use of our Information:
  • the user is a consultant providing expert advice to a specific client
  • our Information relates to a relatively small geographical area (e.g. a sub-catchment or a particular development site)
  • a consultant is advising in connection with representations made to a local authority or the Environment Agency (e.g. when providing a Flood Risk Assessment) or other proceedings (e.g. Court or Tribunal) or Regulatory Processes (e.g. OFT Investigation)
  • the appropriate annual Internal, Commercial charge and annual Complex usage charge has been paid, and
  • we are permitted to re-use the Information provided by that consultant in pursuance of our statutory obligations.

If the licensee makes any External supplies of our Information or of products or services that have used our Information other than as described in this exemption, appropriate External, Commercialre-use charges will be assessed.

  1. Where in exceptional circumstances the licence is for re-use of Information or Know-how in a way that is considered to be of significant importance to the achievement of the Environment Agency’s objectives and, in all the circumstances it is appropriate, we will provide a full or partial waiver of all charges subject to approved under the Scheme of Delegation.

3. Memorandum of Understanding

This exemption applies where we have a memorandum of understanding or other written agreement with another public body or not for profit body that includes all Information or Know-how exchange between that body and the Environment Agency. On a mutual basis, we will apply a full or partial waiver of any charges, but the Information or Know-how must normally only be supplied with a licence that allows internal usage.

4. Collaborative arrangements

This exemption applies where we have entered into a collaborative arrangement which is in pursuance of our public task and/or another public body’s public task and that arrangement provides expressly for Information or Know-how relevant to that collaboration to be exchanged.

On a mutual basis, we will apply a full or partial waiver of any charges, but the Information/Know-how must only be licensed for re-use in that collaboration.

5. Statutory supply

If there is legislation (or court order etc.) that expressly states that we must supply Information or Know-how either generally or to a particular person(s) then, unless the legislation states otherwise, this is exempt from re-use charges, including payments due to third parties, only where the customer is using the Information/Know-how solely for the purposes envisaged by the Statute.

To qualify for this exemption, the enquirer must quote the relevant statutory provision. This will typically be:

  1. a third party public body using their own legislation to require us to answer their questions or
  2. Information that must be supplied under litigation procedures.

6. Environment Agency contractors

Where supply is made to a contractor working for us and is necessary for that contract and subject to the appropriate contractual agreement that prevents other usage, charges do not apply.

Title / Charging for the re-use of Information and Know-how
No. / 99_07 / Status: / Version 2 / Issue Date: / 13/06/08 / Page 1 of 8

[1] This is because we only charge costs recoverybased charges to non-commercial users.

[2] As opposed to the other Special Data types of model input data, model output data or know-how.

[3] When deciding known costs to the Agency, ensure that the estimate can be defended if challenged

[4] Note that if we do not have the resource to split a dataset to provide the Information requested then we will provide the whole dataset, but still only charge on a pro-rata basis. The licence conditions will state that the licence is only granted for the relevant section of the database.

[5] As opposed to the other Special Data types of model input data, model output data or know-how.

[6] By income we mean actual gross income received from the end user (i.e. actual retail income).