European Union: Step Forward Toward Open Data: The Revision Of The Public Sector Information Directive

By Laurent Xavier-Simonel, Partner, KGA and Virginie Delannoy, Associate, KGA

Based on the huge economic growth potential of the digital technology sector, and on the development of new high added-value services and job creation induced by the reuse¹ of information generated or collected from the public sector, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the reuse of public sector information (Public Sector Information Directive) (PSI) aimed to establish the first basis of the reuse, by economic actors, of such public information.

Public sector information is very diverse. It may be meteorological, environmental, social, cultural, geographical or legal. It may also be data on tourism, companies or education. These data are collected through public utility missions performed by public sector bodies. They offer an extremely rich and diverse primary material that may be used in innovative applications for the benefi t of digital competitiveness and employment. Public sector information resources are rightly referred to as "key resources" (recital 6 of the directive). Indeed, it is objectively impossible to duplicate these data for which public sector bodies have a de facto monopoly on their provision, and access to these data in reasonable conditions is necessary for the development of innovative activities.

Reuse consists in commercial or non-commercial exploitation of public sector information to pursue goals other than those of the public utility mission for which they have been initially produced or collected.

Very dimly normative, the PSI Directive did not oblige the Member States to allow the reuse of their public sector information and let them free to open or not their data to reuse. However, if a Member State had chosen the free reuse, the directive regulated conditions for reuse to harmonise Member States practices and to ensure that they would be fair, proportionate and non-discriminatory.

The PSI Directive held that the Member States might allow for reuse without conditions, especially without financial conditions (open data), or might regulate through a license which provisions would have to be proportionate and nondiscriminatory to prevent the reuse from becoming impossible or to prevent the conditions from restricting competition (especially when a public sector body competes with reusers on the market).

That is why the PSI Directive sets principles guiding the Member States for the calculation of the charges in accordance with the principle of marginal cost-oriented charges without excluding a reasonable return on investment. Complying with the principle of transparency, it imposes a pre-publication of any applicable conditions and standard charges.

The public sector body in question had also to indicate which factors would be taken into account in the calculation of charges when it was requested to do so. Finally, it prohibited any exclusive arrangement that was not justified by a provision of a service in the public interest.

Otherwise, the PSI Directive did not apply to data held by educational and research establishments and by cultural establishments (in particular museums, libraries, archives). It preserved intellectual property rights held by third parties and did not affect the protection of individuals with regard to the processing of personal data.

Despite the positive effects of the PSI Directive, the lack of a right to reuse genuinely opposable to the Member States, the low degree of control of financial conditions for reuse and the exclusion of cultural data from the scope of the directive although they are considered to be a particularly rich primary material to incite the development of innovative products, put a curb on the policy of the widest possible opening of public sector data for their valorisation. For example, little mindful of the economic potential in question (the EU market for reuse is estimated at 140 billion euros each year), some public sector entities impose very high charges for reuse to obtain quick maximum recovery of costs and thus erect real barriers to entry into the market.

That is why the current review of the PSI Directive was undertaken. Despite a tense debate between the supporters of open data, i.e. free reuse of public sector information to serve digital revolutions, and the advocates of a gradual regulated opening to shield this collective wealth from what some people see as an uncontrolled mercantile appropriation in favor of a minority, Directive 2013/37/EC of the European Parliament and of the Council amending Directive 2003/98/ EC on the reuse of public sector information was issued on 26 June 2013.

Directive 2013/37 creates a general obligation for Member States to allow reuse for commercial or noncommercial purposes of their freely accessible public sector information, unless they are protected by an intellectual property right held by a third party. In addition, this requirement shall apply to public sector data held by libraries, museums and archives, which were until then out of the scope of the PSI Directive.

The right of reuse may be granted without any conditions (open data licenses). When conditions are imposed, they must comply with competition law.

In this respect, in order to ensure the effectiveness of the right to reuse, Directive 2013/37 provides that the total amount charged by public sector bodies be limited to the marginal costs incurred for their reproduction, provision and dissemination. Nevertheless, this rule shall not apply to three cases including the case where the revenue generated by the reuse shall cover "a substantial part of [the] costs relating to the performance of (...) public tasks" and, without any justification, the case of "libraries (...), museums and archives" (6.2). In those cases, the total income "shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment." Strangely, the Directive makes a distinction between the first case for which charges will have to be established according to objective, transparent and verifiable criteria and the last case for which the compliance to those principles is not required. Pursuant to article 9 of PSI Directive amended by Directive 2013/37, the data should be provided in a commonly used machine-readable format to ensure they can effectively be read.

Directive 2013/37 provides that negative decisions must indicate the reasons of the refusal and the means of review. In this respect, the case should be heard by an impartial body in charge of supervising the proper application of these rules, such as the national competition authority, the national access to documents authority or a national judicial authority. Contrary to the Commission proposal, the creation of an independent administrative authority is not required anymore.

Directive 2013/37 allows a genuine enforcement of the right to reuse public data while ensuring the protection of third-party intellectual property rights and personal data. However, the availability of cultural data still remains an issue, given the exceptional rules applicable to their reuse, on the one hand, and the dispensatory possibility to maintain exclusive arrangements during a period of ten years when exclusivity is granted in compensation of digitisation of cultural resources, on the other hand. To ensure transparency and loyal competition, it would be necessary that this kind of agreement be awarded after a transparent and non-discriminatory procedure, in so far as they grant to the private party a major economic advantage.

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Footnote

1 In Belgium, reuse, previously forbidden, is now regulated; France has created a general right to reuse and encourages open data at the national scale; Netherlands and Sweden have ended a lot of exclusive arrangements; in Slovenia and in the United Kingdom, a real policy of transparency on the availability of public information and enforceable licenses has been implemented (creation of web portals); Netherlands and some Austrian public bodies are moving towards charging only marginal costs or less; and effective, cheap and independent actions have been established in France, UK and Slovenia (source: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions, 7.05.2009 COM(2009) 212 final).

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