Microsoft Word - TNA verification report

Information Fair Trader Scheme
Verification of commitment to information fair trading

The National Archives
December 2007
Unlocking the potential of public sector information

1

PART ONE: INTRODUCTION
3
PART TWO: ACTIVITIES CARRIED OUT BY THE VERIFICATION TEAM
7
PART THREE: HIGHLIGHTS AND AREAS FOR IMPROVEMENT
9
APPENDIX ONE: SUMMARY OF RECOMMENDED ACTIONS
17
APPENDIX TWO: LICENCE REVIEW
19
APPENDIX THREE: WEBSITE REVIEW
29

Visit: 7th and 10th of December 2007
© Crown copyright 2008

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PART ONE: INTRODUCTION

Information Fair Trader Scheme
1. The Information Fair Trader Scheme (IFTS) is the best practice
model for public sector bodies wishing to demonstrate compliance
with the Re-use of Public Sector Information Regulations 2005. IFTS
ensures that re-users of public sector information can be confident
that they will be treated reasonably and fairly by public sector
information providers.
2.    IFTS is also the mechanism by which the Control er of Her Majesty’s
Stationery Office (HMSO) regulates those Crown bodies with a
delegation to administer their own licensing. All such bodies with a
delegation must remain accredited to the Scheme. IFTS is also open
to most public bodies to join voluntarily.
3.   The National Archives does not have a delegation and as an archive,
is exempt from the Re-use of Public Sector Information Regulations
2005.
4. Following the merger of the Office of Public Sector Information
(OPSI) with The National Archives, the Controller of HMSO and the
Chief Executive of The National Archives recognise that The National
Archives should demonstrate a high level of commitment to IFTS
principles, and as such join the scheme as a voluntary member.
5.   OPSI is exercising the independent regulatory function assigned by
the Controller of HMSO when verifying The National Archives.  The
verification looks at commercial licensing as an autonomous activity,
not The National Archives as a whole.
6.  To be accredited to IFTS, an organisation will:
o  make a commitment to the IFTS principles;
o  see the commitment successfully independently verified; and
o  investigate complaints that the commitment has not been met.

7.  Once a Chief Executive has declared the commitment, the underlying
administrative and decision-making processes of the organisation are
examined to verify that they support the Information Fair Trader
commitment.
8. This report shows the findings and conclusions of OPSI’s IFTS
verification of The National Archives.

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The Business of The National Archives
9.  The National Archives is a non-ministerial government department
and an executive agency of the Ministry of Justice with approximately
600 staff. It brings together the Public Record Office, the Historical
Manuscripts Commission, the Office of Public Sector Information and
Her Majesty’s Stationery Office.

10. The vision of The National Archives, as the official archive of UK
government, is to lead and transform information management;
guarantee the survival of today's information for tomorrow and bring
history to life for everyone. The National Archives holds over 900
years of records, ranging from parchment through to digital files and
archived websites.

11. ‘Providing a practical framework of best practice for opening up and
encouraging the re-use of PSI’ is part of the mission statement for
The National Archives. The National Archives has the lead across
government on information management and is seen as a world
leader in setting standards in improving access to information.

Licensing Activity at The National Archives

12. Much of the material that The National Archives deals with is Crown
copyright for which the copyright is waived or the duration of
copyright has expired. Trading in information, The National Archives
relies on its right to reproduce records under the Public Records Act
when entering into a contract to allow for the reproduction of the
material. Where the copyright material is held by a third party, The
National Archives states that permission from the copyright holder
must be sought prior to re-use and provides the contact details of the
copyright holder on request.

13.
Income from licensing for 2006-2007 amounted to £710,000,
representing 1.6% of The National Archives’ overall income. The
National Archives’ executive agency agreement states that revenue
raising activities, linked to the archives’ vision, should continue to be
developed. This is to generate additional income to the central
funding received for limited capital and running costs expenditure.

14. Business Development is the revenue generating arm of The National
Archives. Within Business Development, the licensing team are
responsible for all licensing activity at The National Archives.
Revenue generating activities also comprise of publishing, marketing,
the image library and retail functions.

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15.
The National Archives’ overall goal is to widen access to the
information it holds. As part of this access agenda, The National
Archives is undertaking an ongoing project to digitise the most
popular requested records. The outcomes of this project are that
trading services have been brought to full cost recovery and as many
as possible of The National Archives most popular records are
available online.

16. There are two methods of charging for licensing at The National
Archives.   In the case of reproduction fees charged by the image
library, the physical copying and supply costs are contained in the
statutory instrument, Public Records Office (Fees) Regulations 2005.
For digitised records, royalties are based on the relevant industry
benchmarks for commercial use which are set at a standard
percentage rate for data supply.

17.
Licensees and re-users range from stationery companies, gift
merchandise companies, home ware and ceramics companies,
publishers, academics, museums, exhibition centres, documentary
and media  companies, and web users.

18. The National Archives has developed five non-exclusive licences for
re-use, dependent on the specific end use of the information. These
licences are:

o  the  standard non-exclusive licence;
o the
digitisation
licence;
o  the online only licence (internet delivery);
o  the educational use (academic) licence); and
o  the merchandising product licence.

19. The Licensed Internet Associateship (LIA) is the licence issued for
the ongoing large scale record digitisation project.  This is a licence to
digitise extensive datasets such as census or genealogical data. This
is achieved through partnerships with private digitisation companies
which incur the full cost of digitisation.  The National Archives gives
the private partners exclusive onsite access rights during digitisation.
Following completion, the co-branded non- exclusive digitised records
are linked to The National Archives website via the partnership
website and can be re-used by other internet users.

20. The National Archives has separate licences for merchandising and
academic licensing due to the different industry standards for these
specific markets.

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Overall Assessment

21. The National Archives’ overall vision to maximise access to the
information it holds is to be commended. The verification team also
found several examples of good practice to report, for instance that
The National Archives delivers a high level of customer service and
satisfaction and actively seek feedback from licensees. The
recommendations in this report will further raise the standards
achieved in information fair trading. The primary issue highlighted by
the verification was that the business language The National Archives
uses needs to be revised to properly reflect its commendable access
agenda and practices.

22. Based on the team’s assessment, The National Archives has been
accredited to IFTS and should be re-verified in 2-3 years.

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PART TWO: ACTIVITIES CARRIED OUT BY THE VERIFICATION
TEAM
Methodology
23. The underlying purpose of the verification was to establish whether
the key principles of openness, transparency, fairness, compliance
and challenge were achieved. Different types of activity, where one
might expect to see these key outcomes achieved, were examined.
This approach was based on a matrix model, as shown below, which
takes each of the outcomes, and shows how work in each of the
areas of activity demonstrates compliance.
24. The organisation is divided into a number of key business areas.
Each of the areas is divided as necessary into areas of verification
focus. The key business areas, and the areas of verification focus, fall
under the fol owing headings:

Business Area
Verification Focus
Service Offering
Understanding of licensing/ selling
information
Pricing
Terms and Conditions
Access
Access to and re-use of government
information
Websites and equivalents
Internal Processes
Staff responsibilities and delegations
Exceptions handling
Costs and Cost allocation
Complaints handling
Standards
Service standards
Strategic
Business objectives and performance
Management
indicators
Management supervision of compliance
Relationship with Commitment to IFTS
HMSO
External Constraints
Competition Act 1998
Financial targets
Legislation

25. When considering the findings of the verification, a view is formed as
to whether the organisation was sufficiently meeting the desired
outcomes of fairness, openness, transparency, compliance and
challenge. The verification also takes into account whether the
organisation was demonstrating a genuine commitment to
strengthening the Chief Executive’s commitment and making
substantial progress towards that goal.

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Activities Undertaken
26. The  verification  team:
o  examined key policy and practice documentation;
o  interviewed staff members within the organisation;
o  reviewed licensing files;
o  reviewed the website;
o  reviewed the standard licence; and
o  reviewed the complaints process.

These activities are described in more detail below.

Documentation review
27. The organisation provided documentation in support of the Chief
Executive’s commitment which was reviewed by the team, prior to the
onsite verification.
People and Practices
28. In order to see how people in the organisation work and how their
work is impacted by the Information Fair Trader commitment, the
team interviewed a range of staff of all levels who are involved in the
policy or practice of providing information.
Licence File Review
29. A sample review of customer files, covering both government and
commercial re-users was carried out.
Website review
30. A review of the organisation’s website was made from the viewpoint
of a potential re-user of information to assess how easy it was to use.
This was carried out by someone who was not part of the on-site
team in order to achieve some objectivity. A more subjective review
of the website also took place, based on what the verification team
knew of the organisation.
Licence review
31. The terms and conditions of the standard licences were reviewed.
Complaints process
32.
The customer complaints process was examined by the team.
Consideration of the organisation’s complaints process, both policy
and practice, indicates how committed an organisation is to meeting
customer needs.
Assistance provided by The National Archives

33. The team appreciate the co-operation and assistance of The National
Archives licensing staff.


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PART THREE: HIGHLIGHTS AND AREAS FOR IMPROVEMENT
Openness
34. The National Archives meets the principle of openness with several
examples of good licensing practice. The three recommendations for
this principle cover minor rewording of documentation to further
increase openness.

“In principle, the Chief Executive expects that all information created by
the organisation will be licensed for any use, by any customer. While there
might have to be exceptions to this, whether limiting the material licensed,
prohibiting uses or limiting the customer base, the Chief Executive will be
reluctant to allow exceptions and will explain why they are necessary.”

Information Asset Register (IAR)

35. The National Archives holds a vast extent and scope of archived
records. It has therefore developed several central registers or online
catalogues cumulatively known as the National Register of Archives,
which allows users to identify and request information. Users can
search online or onsite and are provided with user guides and
assistance from staff.

36. It is standard practice for central government and trading funds to
have an Information Asset Register (IAR). However, in view of the
enormity of The National Archives’ information holdings, taken in
consideration with the level of detail and ease of use already provided
by  the  information navigation resources and tools, it is accepted that
the IFTS criteria for openness to re-use has been met in this
instance.

37. It is therefore unnecessary at this stage for The National Archives to
develop an IAR as the existing catalogues are of sufficient quality.

Access to Information

38. The National Archives’ Licensed Internet Associate (LIA) digitisation
process is an impressive exercise in making a vast amount of
material available for potential re-use. It is a cost effective scheme
which recognises that resources would not be available for The
National Archives to digitise this volume of material at the pace at
which it is being done, without the involvement of a private sector
partner. The process is tendered fairly which results in the
digitisation source material being available to all customers after 6
months have elapsed. The LIA digitisation project accounts for 90%
of income generated by the licensing activity of The National
Archives.


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Licensing exceptions

39. The National Archives has eight licensing exceptions currently listed
on the website.  It is recommended that the exception to refuse
licence applicants who are currently or previously have been in
dispute with The National Archives, be removed.    OPSI
encourage all forms of feedback and this exception is considered
both restrictive and unfair.

40. It is also recommended that the following exception be reworded
to reflect the actual circumstances these describe:
“We may refuse to grant certain applications if your request to reproduce The National
Archives material falls outside our standard non-exclusive licensing terms and conditions.
If we reject your application, we will explain why, try to offer another solution and work
with you to revise your application if appropriate. We will refuse a licence if you apply to
become a National Archives licensed Internet Associate (LIA) but fail to meet The
National Archives LIA programme selection criteria. “

41. The above exception relates to the legal terms and conditions, not the
proposed re-use terms and conditions.  The National Archives
welcomes new proposals for re-use.   Also it is encouraged that the
second part of this exception relating to LIAs be reviewed to become
an exception in its own right.

Fairness

42. The LIA programme is an example of good practice for the principle
of fairness, and The National Archives is commended for the equal
treatment of its users.  The National Archives meets the principle of
fairness and receive no formal recommendations for fairness.

“All applicants and licensees should be treated alike for the same type of
licence. The organisation should not use its market power to compete
unfairly.”

LIA process

43. For the LIA programme, three contracts are awarded per year, with
the total bidding process for each taking approximately four months.
The dataset of records to be digitised are selected on the basis of
usage. The National Archives advertises the potential datasets on
the website and contacts all digitising companies that have expressed
an interest in LIAs.  The application form sets out objective technical
criteria for selection, which are quantitatively measured to optimise


10

fairness. Applicants are given support in this process from The
National Archives, with unsuccessful bidders receiving feedback to
aid any further application.

44. The  LIA  application  criteria  includes reference to the potential
partner’s reputation. The LIA contract is delivered with use of The
National Archives branding and access through links from The
National Archives website, meaning this criteria relates to any
potential reputational risk to The National Archives rather than the
market status of the applicant. The 1911 census digitisation contract
was awarded to Scotland Online, a relatively young company,
demonstrating this has no bearing on the fair treatment of new market
players.

LIA competitors

45. The National Archives has contact with the LIA partner throughout the
digitisation process, when the partner has exclusive access to the on-
site records, and fol owing completion when access to the digitised
records is then non-exclusive.  The verification team looked into the
relationship between The National Archives and the LIA digitising
partners, with possible regard to unfair advantage over LIA
competitors post digitisation. The team found ful  and fair access for
online competitors of the non–exclusive LIA licensees once
digitisation was complete, with no unfair commercial advantage to
partners.


Transparency

46.
The National Archives receives five recommendations for the
principle of Transparency. This reflects the need for a move away
from a commercial business language to one of re-use in order to be
better aligned with this principle.  The National Archives meets the
criteria for transparency and these recommendations will increase
this further.

“Applying for a licence, not only the process, but prices, the considerations
influencing price policy, and any exceptions to the principle of openness,
should be explained clearly and simply in accessible public statements.
Licensees and applicants for licences should be given reasons for
decisions and the reasons should be consistent with public statements and
Information Fair Trader principles.”


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Licence review

47. The licence review analysed licence templates used by The National
Archives and appears in appendix two of this report. It is
recommended that The National Archives acts on the points
raised in this licence review.

48. The review concluded there was no discrimination between the
different user groups and no restrictive terms, however some minor
drafting issues were identified which could act as a barrier to
openness and transparency.

In summary these are:

49.  OPSI is aware that these are legal documents intended, in most
cases, for a legal audience however it is recommended that where
possible there is a reduction in arcane legal phrasing. This
would both modernise and streamline the licensing documentation
and align with The National Archives ‘Plain English’ ethos for which it
has received an award for best practice.

50. This would also indirectly improve the clarity of the specific licence
terms drawn attention to in the licence review. It is recommended
that the clauses highlighted are reviewed, to encourage greater
readability and understanding.

51. There were several drafting points that were highlighted by the review
which once rectified would add to the transparency of the licences.
These are:

o  to ensure all clauses are correctly cross referenced;
o  all defined terms are correctly defined and standardised;
o  removal of any Americanised spellings; and
o  rewording of some clause headings.

Use of Commercial language

52. The language used by the licensing team does not reflect the actual
access policy it champions and licensing activities it practises.

53. Currently the commercial language used by the licensing team, such
as ‘negotiate deals’ and ‘competing in the open market’ gives the
impression of being at odds with IFTS principles.  However the
verification team found this to be a business language issue rather
than a business practice issue, as demonstrated by the examples of
good practice, in particular for the LIA programme.


12

54. To mirror actual practice, it is recommended that The National
Archives use language which actually reflects the work being
done. This should be adopted at every level of the organisation to
reflect The National Archives’ status as a newly accredited IFTS
member.

Timing of licensing process

55. The National Archives publishes its service standards on the website
and delivers a measurable high level of customer service and
satisfaction. Continuing this good practice, it is recommended that
The National Archives adopt Key Performance Indicators (KPIs)
for the licensing process. While the licensing team already provide
a timetable of the process for potential LIA applicants, adopting KPIs
would further increase the transparency of the process for users and
demonstrate the high level of service being offered.

Image Library

56. The Image library licenses the use of images held by the National
Archives for use in the media industry, covering broadcasting, print
and digital channels.   Licensing terms and prices vary for the image
library depending on the size of the image requested; numbers of
images ordered and intended global audience.

57. OPSI would encourage The National Archives to be more transparent
about this process and the pricing methods used by the image library,
particularly with multiple image requests. This information is not
currently on the website although a standardised method is used
based on industry benchmarks.

58. A full price list for these bulk orders is currently being finalised and is
intended to be incorporated into the image library web-page as an
interactive tool for re-users, to calculate their individual prices online.
This proposal would greatly increase the transparency of the pricing
methods and the anticipated user-centric format will speed up the
process for both parties.

59.     It is recommended that The National Archives incorporate the
intended price list calculation tool into the image library web
page with an accompanying statement to the effect that users
of the same material for the same purposes will be treated in
the same way.  This will reflect the standardised and quantitative
methods that are in use within the organisation, but not publicly
advertised.


13

Financial model

60. OPSI are aware that The National Archives is currently implementing
a major change to the organisational financial regime, from a
traditional charging model to a notional cross-charging model. While
this will lead to greater financial transparency and introduce a ‘real
time’ financial picture, there is a lack of clarity in the current model.
OPSI will monitor this at re-verification in 2010-11.

Website review

61. OPSI found The National Archives website to be implicitly compliant
with IFTS, but would like to see more explicit references to IFTS
principles and practices. This would also promote the status of newly
accredited IFTS member to its users. The website review can be
found in appendix three of this report.

62. It is recommended that the licensing web page is revised to
include reference to all IFTS principles and the Chief Executive’s
commitment to the scheme. The licensing team are encouraged to
regularly update and monitor the website.

Compliance

63. The National Archives has met the principle of compliance with no
major barriers to IFTS accreditation. The National Archives receives
two recommendations for this principle.

“Chief Executives agree to test their organisations by an independent
verification to find out whether they have the infrastructure to deliver their
commitments to openness, transparency and fairness. The verification
tests whether the administrative processes are actually fol owed in
practice.”

Training
64. It was noted on the verification that there is no formal licensing
training for the licensing team. Tying in with this, there is also a lack
of formal staff guidance material on licensing and other commercial
policy issues. It is recommended that The National Archives
develop formal licensing staff training materials, internal
guidance and policy documents.   This will ensure a standardised
approach and that all staff are ful y aware of their IFTS obligations.  In
particular, there is a need for formal staff guidance on the
Competition Act in line with the IFTS commitment.    OPSI would also


14

encourage greater incorporation of OPSI guidance on re-use of
Public Sector Information to maximise this.

65. It is recommended that IFTS principles are incorporated into the
licensing team business plan, highlighting that meeting the IFTS
commitment is a strategic objective. This will ensure the
procedures to support the delivery of ongoing responsibilities under
IFTS are in place. To strengthen this, OPSI would also like to see the
personal objectives of licensing staff to include reference to open, fair
and transparent working practice.

Licensing file review

66.
The licensing file review investigated The National Archives’
electronic licensing records and found no evidence contrary to IFTS
principles.  The National Archives has a high standard of information
management, with a complex but easily navigable system.

However,  some examples of out of date licences were discovered
during the verification, which could be removed, those being:

o  2002 Image library ‘licence agreement’;
o  2002 CD ROM ‘agreement’;
o  Public Record Office ‘framework agreement for the provision of
contract services’ (photographic licence);
o  Untitled non-exclusive licence for image library products (12 pages);
o  internal price guide of image library for marketing purposes.

Challenge

67. The National Archives meets the principle of challenge with one
recommendation to further improve the robust complaints process
already in place.

“The organisation has a complaints process empowered to reconsider
incorrect licensing decisions. OPSI can investigate the organisation's
licensing decisions if they appear to be wrong.”

Licensing complaints

68. The licensing complaints process is a channel of The National
Archives’ overall complaints procedure. There have been no formal
complaints raised for The National Archives licensing activity to date.

69. As part of the ongoing IFTS responsibilities The National Archives
should ensure that users are aware that there is a separate


15

complaints route under IFTS.  It is recommended that The National
Archives explain clearly and unambiguously that complainants
should complain to The National Archives licensing team in the
first instance, after which an independent complaints route is
available under IFTS.

70. The National Archives actively seeks feedback from its licensees to
review and develop the licensing process as part of an ongoing
consultation programme. This is commended as an example of good
practice.  OPSI would also encourage the National Archives to seek
feedback from licensees on maximising the re-use of the information
licensed to add to the mutual benefit of this existing initiative.


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APPENDIX ONE: SUMMARY OF RECOMMENDED ACTIONS

This is a summary of the ten recommended action to:

•  remedy the weakness identified; and,
•  strengthen the commitment to Information Fair Trading.

Principle  Ref  Recommendation
Priority
39  Remove the exception to refuse licence applicants  High

who are currently or previously have been in

dispute with The National Archives

40  Reword the exception that applications may be  High
refused if they fall outside The National Archives
e
s
s

n
n
standard terms and conditions, in order to reflect
p
e
the actual circumstances these describe

O


46  Act on the points raised in the licence review in  Med

order to bring the documents further in line with



IFTS and the commitment to the scheme



53   Adopt the language of re-use to reflect the culture  Med
of access and reuse championed

54  Adopt Key Performance Indicators (KPIs)
Med
for the licensing process
55  Incorporate the intended price list calculation tool  High
into the image library web page with an
y

accompanying statement to the effect that users of
r
enc
the same material for the same purposes will be
treated in the same way
n
s
p
a

Tra
58  Revise the licensing web page to include reference  High

to all IFTS principles including the Chief

Executive’s commitment to the scheme



59  Develop formal licensing staff training materials,  Med

e
internal guidance and policy documents,
particularly for the Competition Act

o
mplianc
60  Incorporate IFTS principle into the licensing team  Med

C

business plan, highlighting that meeting the IFTS

commitment is a strategic objective


17

62 Explain clearly and unambiguously that the users High
e
should complain to The National Archives licensing
ng
e
team in the first instance, after which an
hall
independent complaints route is available under
C
IFTS

18

APPENDIX TWO: LICENCE REVIEW
THE NATIONAL ARCHIVES STANDARD LICENCE REVIEW 1

Date of Review: 14th January 2008

Title: Digitisation & Licence Agreement (Boilerplate LIA Distribution

License Feb06.clean doc)

Evaluation Criteria

1.
Clarity of licence terms

Check for clarity of language, jargon, legalistic language, plain
English

a)
Some of the licence terms are in plain English while others are written
in more legalistic/formal language.  The licence terms could be simplified by
removing some of the superfluous wording. For example, in Clause 1
(Definitions) the use of the words “more particularly” in the definition of “the
Licensed Material” could be deleted. The definitions of “Associate”, “Group”,
“Holding Company” and Subsidiary are also legalistic and could lead to
confusion where they feature in the licence terms.  Other wording which could
be deleted includes “hereby” in the second line of clause 2.1; “thereof” in 2.4;
and “hereto” in 5.1.1.

b)
The Recital would be enhanced by including background on the role
and the responsibilities of The National Archives/The Public Record
Office/The Historic Manuscripts Commission and how they relate to the
Material which is covered by the licence. Clause 2.4 specifically prohibits the
Publisher from using those names, and any related logos, except in context of
the acknowledgement set out on Schedule 1.

c)
The licence document covers two distinct activities and this could be
made clearer in the arrangement of the clauses.

1) It gives the Publisher the right to create a digital version of records
and documents held at The National Archives (the Material). Copies of
some records/documents will be supplied to the Publisher and wil  be
subject to the payment of an appropriate fee.  Where The National
Archives is not able to supply copies of the records/documents the
licence sets out the arrangements for making available the actual
records/documents to an Approved Location for digitisation. Clause 4
has some alternative sub-clauses to cover this arrangement.

2) It also gives the Publisher the right to make the digitised version of
records/documents (Digitised Licensed Material) available to users as
online services via the Internet.


19

d)
The wordiness of Clause 1 (Definitions) could be reduced by deleting
“the” from the start of the definitions.  One possible way of improving the
layout and readability would be for the words/expressions to be set out on the
left side of the page and each of the meanings inset across the page as
hanging paragraphs.

2.
Comprehensiveness of licence terms

Are there any significant omissions? Does the licence contain
terms that you would not expect to find in a licence?

a)
There are definitions for “Rights”, “Intellectual Property Rights” and
“Licensed Material” but not one for Crown copyright. This would need to link
to those other definitions to ensure clarity. Schedule 1 (Acknowledgement)
requires the Publisher to include an acknowledgement of Crown copyright,
meaning this term must be defined.

b)
Clause 2 is headed “Grant of Rights; Reversion of Rights” however the
sub-clauses under this heading do not cover the reversion of rights! Sub-
clause 2.4 relates to the assignment of the Intellectual Property Rights in the
Digital version of the records from the Publisher to The National
Archives/Crown. This needs to be clarified.

c)
Clause 7 is headed “Confidential Information”, this term is used in the
sub-clauses under this heading but it is not included among the definitions. It
is not clear what is regarded as Confidential Information. The abbreviation
FOIA is used in sub-clause 7.2 rather than the full title Freedom of Information
Act. It is not clear what the link is to clause 13. The Act is also mentioned in
sub-clause 4.5.  Any defined or abbreviated terms must be correctly
described.

3. Fairness

Does the licence contain terms that are unfair or unnecessarily
discriminate between different user groups?

a)
The licence does not include terms that seem to discriminate between
different user groups.

b)
Sub-clause 5.2 sets out the requirements that should be set for the
users of the Digitised Licensed Material.  It is not clear what is considered to
be “research, private study and education”, for example the meaning of a
“professional research result”. Schedule 1 includes wording for an
acknowledgement that relates to the provisions of Clause 5.2.


20

c)
It is not clear how The National Archives decide the level of the
advance at 6.11. This could be clearer that a consistent approach is adopted
by The National Archives staff when setting the level of the advance payment.

d)
The National Archives sends out invoices for the fees that relate to the
provision of copies of the Licensed Material. There is a requirement to pay
the invoice within 15 business days (Sub-clause 4.4). The National Archives
does seem to issue invoices for the royalties or the advance (Clause 6) but
under clause 9.1.2 the Licensor is able to terminate “if the Publisher shall fail
to pay any sum due to the Licensor within 30 Business Days of the due date”.
This could be made explicit.

4. Consistency

Does the licence contain any terms which are inconsistent and
contradictory?

a)
Some of the sub-clauses contain words and expressions which have
initial capitals and are therefore significant but have not been included in
Clause 1 (Definitions). These include: “Authorised Contractor” (sub-clause
8.3.3) and Defaults (sub-clause 8.5.  The abbreviation The National Archives
is used in sub-clause 4.5 rather the Licensor. Terminology should be
standardised.

b)
Sub-clause 12.1 refers to clauses 12.2 and 12.3; they are not included
in the agreement. . Sub-clause 10.1.1 refers to a clause 2.9, and there
appears to be no clause 2.9. This should be rectified for consistency.

c)
In relation to sub clause 12.1, The National Archives should not and
cannot assign any rights belonging to the Crown and this should be made
clear.

d)
Sub-clauses 4.4 and 4.5 refer to “the Statutory Instrument rate
prevailing at the time”. There are hundreds of different Statutory Instruments
in force.  The licence should make clear that the fees are calculated with
reference to the current version of the Public Record Office (Fees)
Regulations 2005.

5. Practical
Arrangements

Is it clear what the process is for making payments, amending
terms for example?

a)
There are three types of payment due under this licence:
1)
for the supply of copies of the documents (sub clause 4.4)
2)
a royalty (6.1) and,
3)
an advance on royalties (6.11)


21

For clarity The National Archives could consider putting all the payment
details in one clause.

b)
It is not made clear in the licence terms if the Publisher can deduct the
advance from the first royalty payment.

c)
Clause 10 covers Effect of Termination.  Sub-clause 10.3 seems to
al ow the Licence Material to be made available to the End-Users for “a
maximum period of twelve months” after termination.   This should also be
qualified for instances when the Publisher is declared insolvent or has
committed a material breach.

6.
Restrictiveness of terms

Are any of the terms unnecessarily restrictive?

a)
The payment of an advance could be seen as being restrictive if the
level of the advance is set at too high a rate. Including a reference to the fair
pricing method would clarify this.

7. Additional
Comments

a)
Clause 8 sets out the Warranties and Limitation of Liability. The sub-
clauses which set out the warranties and the limitation of liability are extensive
and written in legalistic language.  Many of the sub-clauses cover limitation of
liability and relate to the making of the digitised versions of the Licensed
Material. We would make the fol owing general comments:

1.  The National Archives staff do need to make sure that The National
Archives does have right to license all the rights set out in each
individual licence agreement.

2.  If The National Archives staff that are making licence agreements have
any doubts about the copyright status of any the material to be covered
they should seek the views of the Information Policy consultant
copyright expert at The National Archives.

3.  The wording of sub-clause 8.3.5 should be reviewed. It appears to be
saying that the Publisher should not include any “obscene, illegal,
blasphemous or defamatory” material in any of its online services but
that The National Archives are allowing the Publisher the right to scan
any obscene, illegal, blasphemous or defamatory material which is
included in the Licensed Material and can make it available to others
via the online services.  This needs to be unambiguous.


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THE NATIONAL ARCHIVES STANDARD LICENCE REVIEW 2

Date of Review: 14th January 2008

Title: Licence Agreement (online.onlytemplate.doc)

Note:  The Licence Agreement follows the format of the Digitisation & Licence
(D & L) Agreement which has been subject to separate review (review 1).
This version contains most of the same clauses as the D & L Agreement but
some of the wording is different.  This review will not comment on points that
have already been made in the review of the D & L Agreement, which can
also be applied here.

Evaluation Criteria

1.
Clarity of licence terms

Check for clarity of language, jargon, legalistic language, plain
English

a)
The wording of (A) in the Recital is different, in that it refers to
“Licensed Material”.

b)
The rights that are being granted need to be clarified (see comments at
4 (f) below.

2.
Comprehensiveness of licence terms

Are there any significant omissions? Does the licence contain
terms that you would not expect to find in a licence?

a)
See comments at 2 (a) and 2 (b) of the D & L Agreement (review 1).
There is a significant difference in the wording of sub-clause 2.4 of this licence
compared with that in 2.5 of the D&L Agreement. In this licence agreement
the Intellectual Property Rights (IPR) in the Digitised Licensed Material (not
defined) vest in The National Archives (the Licensor) who will assign them to
the Publisher. This is the opposite of what happens under the D & L
Agreement where the Publisher is assigning the IPR to The National
Archives/Crown. That seems the correct approach.

b)
Clause 7 of this licence agreement only contains two sub-clauses
unlike the D & L Agreement which includes 9 main sub-clauses which include
their own additional sub-clauses.  The wording here is quite succinct
compared with the D & L licence agreement which is very legalistic and goes
into great detail about the confidential information. Sub-clause 7.2 refers to
The National Archives rather than to the Licensor and should be standardised.


23

3. Fairness

Does the licence contain terms that are unfair or unnecessarily
discriminate between different user groups?

a)
This licence contains a sub-clause 2.2 which is not included in the D &
L Agreement.   The National Archives have the right to terminate the licence
agreement if the Publisher does not make the Online Service available within
6 months of a request from The National Archives to do so.

b)
Both licence agreements are granted for an initial period of 10 years.
This agreement differs from the D & L Agreement in that it can been extended
for further periods of 10 years, while the D & L Agreement is only extendable
for periods of 5 years. It is not clear why the periods for extension are
different, which could be clarified.

4. Consistency

Does the licence contain any terms which are inconsistent and
contradictory?

a)
The definition of “Account Period” in Clause 1 (Definitions) ends with
the words “commencing with the period ending 30 June 2003” whilst the D & L
Agreement ends “commencing with the first such period or part period ending
after the Effective Date”. The 2003 date needs to be amended.

b)
This licence has a different definition for “Associate”.

c)
This licence includes a definition for “Companies Act” which is not
included in the other version.  The definitions for “Group” and “Holding
Company” are not included. Again any significant terms need to be defined.

d)
Sub-clause 2.4 and 2.5 refer to “Digitised Licensed Material” but there
is no definition for this and the term is not used in the rest of licence, this
should be defined or explained.

e)
The definitions for “the Pay-Per-View Service” and the Publisher’s
Online Service” and “the Subscription Services” contain different wording.

f)
The definition of Rights is different here and contains a reference to
sub-clause 12.2 (Clause 12 General) about sub-licensing. The other licence
includes a separate Clause 12 Assignment & Sublicensing but is not cross
referred to the Definitions. There rights in the Definition are set out at (i) to (iii)
and at (i) to (vi).

g)
Sub-clause 2.8 of this licence differs from sub-clause of 2.4 of the D &
L Agreement in that it does not refer to “the Historic Manuscripts
Commission”.


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h)
Sub-clause 6.7 includes a reference to “the Licensee”, this term is not
used in the licence, for consistency it should be “the Publisher”. Sub-clause
10.1.2 includes the term “the Publisher’s Products” which is not included
among the agreed definitions at Clause 1.

5. Practical
Arrangements

Is it clear what the process is for making payments, amending
terms for example?

a)
Sub-clause 4.1 makes clear that the Publisher has to purchase copies
of the Licensed Material from The National Archives and that the Publisher
will not be given any access to the original documents and records. As
commented in the review of the D & L Agreement the document needs to
refer to the Public Record Office (Fees) Regulations rather than “the
appropriate Statutory Instrument”.  Statutory Instrument could be included as
a defined term in the definitions clause.

b)
Three types of payment are also required under this licence
agreement: (supply of copies (sub-clause 4.5/4.6), royalty (sub-clause 6.1)
and advance (sub-clause 6.10). Sub-clause 6.1 (ii) of this licence does not
set how the method of calculating the royalty for the Subscription Service as
clearly as the D & L Agreement.

c)
Sub-clause 5.1.4 requires the Publisher to inform The National
Archives when it intends to launch the Online Service so that The National
Archives can approve review/approve the presentation. There is no timescale
for this. The wording of sub-clause 5.1.4 of the D & L Agreement is more
expansive on this and states that approval shall be “deemed to have been
given” if The National Archives does not respond “within 5 working days”.
Similar wording could be used in this licence agreement.

6.
Restrictiveness of terms

Are any of the terms unnecessarily restrictive?

a)
This agreement also requires payment of an advance.  Again this could
be seen as restrictive if the rate is set too high and this could be expanded.

7. Additional
Comments

a)
Unlike the D & L Agreement this licence does not contain an extensive
range of sub-clauses under the Warranties and Limitation of Liability clause
heading. This licence agreement only has a Clause 7 headed “The Licensor’s
Warranty” as the Publisher is not being given access to the actual
records/documents for scanning.  The National Archives staff should ensure
that The National Archives has the right to license all the material and they
should check with the Information Policy consultant copyright expert for any
doubts about the copyright status of the material being licensed.


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THE NATIONAL ARCHIVES STANDARD LICENCE REVIEW 3

Date of Review:  15th January 2008

Title: Shortform image license.boilerplate.doc

Note. This licence is set out in a different format to the other licence
agreements, as a letter with an extensive range of terms and conditions.

Evaluation Criteria

1.
Clarity of licence terms

Check for clarity of language, jargon, legalistic language, plain
English

a)
This document would be improved by setting it out as a licence
agreement rather than as a letter. Setting out what are the definitions and
what are the terms and conditions, as numbered clauses, would provide
greater clarity and a more logical structure. The numbered clauses could then
easily be referred to.  Having the date of the licence agreement at the top of
the page and a section setting out who are the parties to the Agreement and
including some appropriate background information about each of the parties
would also provide clarity.

b)
The wording seems to have been put together from a number of
different sources and as a result some of it is in plain English and some in
more legalistic language, which lacks clarity and cohesion.

2.
Comprehensiveness of licence terms

Are there any significant omissions? Does the licence contain
terms that you would not expect to find in a licence?

a)
There do not seem to be any significant omissions but given the way
the document is set out it is not easy to see them.

b)
Paragraph (b) of the Approvals section takes the form of a warranty.
There is no link to the actual Warranties section. Section (c) there relates to
warranty made by the Licensee.

3. Fairness

Does the licence contain terms that are unfair or unnecessarily
discriminate between different user groups?


26

a)
The licence is granted for a period of 2 years (Term section) and can
be “renewed for a further two (2) periods of twelve (12) months, subject to the
prior written approval of The National Archives”.  The other The National
Archives licences reviewed are granted for Ionger periods and can also be
extended for longer periods and such reasons could be explained.

b)
The Licensee is required to pay a royalty to The National Archives.
Part 3 of Schedule 1 to the licence does not state what the royalty rate is.
Whether The National Archives publish a standard royalty rate for this type of
licence or whether the royalty is decided on a case by case other basis is not
clear. The other licences state a royalty rate of 7%.

c)
Section (b) of the Samples & Stock section allows The National
Archives to request that the Licensee supplies copies of the Product to The
National Archives at the “best trade discount available” for “sale in its retail
outlets”.  The wording needs to make clear that the Licensee does not have to
pay a royalty to The National Archives on the products sold to The National
Archives and that The National Archives apply this condition consistently.

4. Consistency

Does the licence contain any terms which are inconsistent and
contradictory?

a)
Some sections of this document use the American spelling of “License”
rather than using the English spel ing for the noun “Licence”.

b)
Some sections of the licence refer to The National Archives and others
to the Licensor. There is also reference to Licensee in the Approvals section
but in the rest of the Agreement [ ] is used. This would suggest that the name
of the licensee is inserted on an actual licence and needs to be standardised.

c)
The term “the Property” is used with an initial capital in the section
headed “3rd Party Proceedings” but is not defined or used in other sections of
the document.  “Third” should be used rather than “3rd”.

d)
The Acknowledgement section requires the Licensee to include the
acknowledgement specified at clause 2 on “the Website”, there does not
seem to be a requirement to include an acknowledgement on the Product,
any packaging or accompanying documentation, which could be inconsistent.
This should also be made unambiguous for Crown copyright material.

5. Practical
Arrangements

Is it clear what the process is for making payments, amending
terms for example?


27

a)
The licence is for the reproduction of material selected from The
National Archives files as part of a Product. It seems applicable for the use of
an image on, for example, a poster or some other form of gift item but it is not
clear from this boiler plate licence. The product could be more explicitly
defined.

b)
Before manufacturing the Product the Licensee needs to obtain written
approval from The National Archives (Approvals section).  It is not made clear
where in The National Archives the samples should be sent and what would
be the turn around time for getting The National Archives approval/rejection of
samples, advertising etc. This should be stated to demonstrate fair treatment
of users.

c)
The wording of the Termination section could be clarified. It gives The
National Archives the right to terminate the licence but there is no provision in
this section for the Licensee to terminate the licence. It does not make clear
what the arrangements are for the payment of royalties up until the date of the
termination of the licence.  In addition it is not clear what will happen to the
remaining stock of the Product.   The section refers to the delivery of “al
copies of the Material to The National Archives free of charge and provide a
certificate of erasure identifying the Digitised Material in a form satisfactory to
The National Archives.” The term Digitised Material is not defined or used
anywhere else in the licence.

d)
The wording of the Assignment section should be clarified. It is not as
clear as that used in the other licence agreements.

6.
Restrictiveness of terms

Are any of the terms unnecessarily restrictive?

a)
The Approvals clause indicates that The National Archives shall be
“entitled to issue reasonable directions (having regard to the proposed selling
price)”.  This could be seen as being restrictive and there could be
disagreement as to what are “reasonable directions”. This could be clarified.

b)
The licence includes a section headed “Restrictions”. These seem
reasonable but it would be better to refer to them as Licensee obligations
rather than restrictions.


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APPENDIX THREE: WEBSITE REVIEW

Website address:
www.nationalarchives.gov.uk

Date of review:

19th November 2007
Score:     192

The following questions were considered:

1.1
Does the website have an Information Asset Register? No.
However, does offer users a register of National Archives
documents (the National Register of Archives) at
http://www.nationalarchives.gov.uk/nra/default.asp.

1.2
If yes, how many clicks is it from the homepage? NRA is 1 click.

1.3
How long did it take to find? <1 minute

1.4  If there is no IAR, is there other guidance on what information is
available?

Some other search facilities on offer on front page.

2.1
Does the PSB use standard licences? Yes

www.nationalarchives.gov.uk/business/licensing.htm

2.2
Are these published in full on the website? No, but application forms
viewable.

2.3  If yes, how many clicks are they from the homepage? 2 (via A-Z
index)

2.4
How long does it take to find? Less than 1 minute

2.5
How many standard licences are there? 4

2.6
Is there an explanation of what different licences are for and is it clearly
understood?
Yes, although the sections on the ‘Licensing’ page of the website
are short and there are no copies of the overall terms and
conditions of the licences.

3.1
Is there any charge made for licences?
Yes, although website offers only some estimates as to the value
of any licensing arrangements

3.2
Is there an explanation of the charges? Yes, albeit brief


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3.3
Is there an explanation of how charges are drawn up? Yes, although
again generalised.

4.1
Is there an IFTS commitment on the website? Not applicable; website
does refer to IFTS scheme, but no direct explicit pledge for The
National Archives to join.

4.2
How many clicks is it from the homepage? 2

4.3
How long does it take to find? Less than 1 minute

http://www.nationalarchives.gov.uk/services/opsi.htm.

5.1
Is there clear and precise information on how to apply for a re-use
licence? Yes, although not referred to as ‘re-use licences’

www.nationalarchives.gov.uk/business/licensing.htm.

5.2  Are there a variety of methods for applying for licences? No, one
standard email address

5.3
Is it possible to apply online for a licence? Yes

www.nationalarchives.gov.uk/business/internet.htm.

5.4
Does it specify a timescale to grant licences? No

5.5
If yes, what is that timescale (in working days)? Not applicable

6.1  Does the PSB have a procedure for complaints regarding licensing
decisions? Yes: www.nationalarchives.gov.uk/business/rights.htm.

6.2
How many clicks is it from the homepage? 3

6.3
How long does it take to find? 1 – 2 minutes

6.4
Does it mention that if the complainant is unhappy they can refer to
OPSI or APPSI? Yes
           http://www.nationalarchives.gov.uk/business/rights.htm.

7.1
Does the website explain what information is not available? Yes

7.2
If Yes, does it explain why? Yes (e.g. national security, confidential
legal proceedings)

7.3
How many items are listed? 3
Exceptions listed as genres rather than specific items.

8.1
Does the website outline any exceptions to normal licensing policy?
Yes

www.nationalarchives.gov.uk/business/rights.htm.


30

8.2
If Yes, does it explain why that exception has been made? Yes

However, some of these contentious. In particular, point 3
paragraphs 1
(…the dispute was not resolved to our satisfaction) seems to be
somewhat at odds with the commitment to accept and investigate
complaints from potential partners.

8.3
How many exceptions are there? 7
A somewhat high figure, although some areas may be
understandable given the nature and variety of material
possessed by The National Archives.

9.1
Does the website have a Crown Copyright notice? Yes, although no
overall acknowledgment of Crown Copyright, individual
documents marked up accordingly

9.2
Is it linked to from every page? No

9.3
How many clicks is it from the homepage? N/A

9.4
How long does it take to find? N/A

9.5
Is OPSI/HMSO mentioned, with contact details? Not in this context.

10.1  Does the website have an electronic search facility? Yes

10.2  If yes, how many clicks is it from the homepage? 0

10.3  How long did it take to find? <1 minute
Present on homepage and all subsequent pages. Very easy to
use, proved very useful tool. Also has an A-Z index which proved
highly effective

11.1  Is the material available by electronic means? Yes - some

11.2  Is it possible to download direct from the website? Yes – some

11.3  If data is not available electronically, is there an explanation of how to
obtain it? Yes, albeit through one email address

11.4  If data is sent via email, is there a specified timescale for delivery? N/A

11.5  If yes, what is the timescale (In working days)? N/A
Fair range of documents available on website. Also mentions
email address for some further questions, although no timescales
available.

12.1  Does the PSB outline its responsibilities under IFTS on their website?
Not directly, despite some acknowledgement of IFTS’ existence.


31

12.2  Does the website explain what IFTS is aiming to achieve? Yes – has
link to OPSI site.

12.3  Are the benefits of IFTS explained? Not directly, only in generalised
context

(http://www.nationalarchives.gov.uk/services/opsi.htm)

12.4  Is the PSB using IFTS logos on their website and actively mentioning
they are a member of the scheme? Not yet members, but IFTS is
addressed on website.

13.1  Does the PSB outline its policy towards its trading of PSI? Yes, albeit
partially

www.nationalarchives.gov.uk/business/licensing.htm.

13.2  Does the PSB explain how it arrives at decisions? Not explicitly,
barring the section on licensing exemptions

13.3  Does the website have an explanation of what re-use is? Not directly

13.4  Does the website explain what Crown Copyright is? No

13.5  Does the website explain why licences are sometimes needed to re-
use information? No

13.6  Does the website explain the difference between FOI and re-use? Yes
Separate page on the Freedom of Information Act, clear on issues
here.

13.7  Does the website explain what a trading fund and delegated authority
is? No

Most areas of this website very well designed and clear, easy for
the user to access a wide range of information with some
efficiency. Also, the search facilities make it relatively
straightforward to get hold of all relevant parts of the site. Much to
be credited here, especially as this organisation has yet to
become a member of the Information Fair Trader Scheme.

However, some aspects of the website could do with some more
information or clearer signalling of key issues (e.g. Crown
copyright). These may well receive some attention once
accreditation for the IFTS scheme has been granted, given the
commitments implicit in such an agreement. Should these
clarifications and further explanations be given on the website,
then it has the potential to meet all requirements of the scheme
with some comfort.


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