UK: Re-Use Of Public Sector Information – Bonanza For The Information Industries?

In June 2002 the European Commission published a proposal for a Directive on "the re-use and commercial exploitation of public sector documents". The scope of this measure is currently under debate, but could release large quantities of content generated by the public sector for exploitation by the information and media industries, while simultaneously undermining the financial viability of some of the very institutions that generate such data.

In January 2002 the European Commission published a Working Document entitled "Towards a European Union framework for the exploitation of public sector information". This proposed that public sector information should be made generally accessible on a cost-recovery basis only. Many would have no difficulty with the underlying premise that governments should not profit from information gathered at taxpayers’ expense and for the public’s benefit.

However, the Working Document went much further than "government information". It covered all information produced by bodies financed for the most part by the state (whether at regional or central level). On the face of it, this included not only such information as (to use UK examples) Ordnance Survey material, HMSO publications and the records of Companies House, but also information generated by such bodies as universities, schools, research institutes, libraries and also by museums and galleries. It proposed that this information should be made available on a non-exclusive basis and at no charge (beyond a fee covering the costs of supply only).

The Commission views participation in "the information society" as both an economic opportunity and a democratic necessity, and has established a Directorate General dedicated to formulating policy and legislative initiatives in this area. In the last couple of years, attention has focused on the role of the public sector. The public sector collects, processes and stores a vast amount of information, be it financial, geographical, legal, meteorological, archival, statistical or otherwise. The Commission believes that the advent of the digital age and the introduction of third-generation technologies will make this sort of information a valuable resource for businesses and citizens alike. It estimates the value of public sector information at €68 billion, and sees it as a springboard for mobile content. Public sector information is, according to the Commission, "a key resource for economic activity and proper functioning of the internal market".

It is clear that the Commission is also keen to use public sector information as a ready-made source for third-generation mobile communications products and services – in effect, as a kind of springboard to make these products and services more attractive.

The seriousness with which the Commission views this issue is reflected in the breakneck speed at which the proposals have progressed from a Working Document to a draft Directive that is now already under discussion in the Council of Ministers and the European Parliament.

A large number of responses were made to the Working Document, both from the information, database and direct marketing industries, and from public sector bodies. In particular, the proposals provoked a considerable reaction among cultural and educational establishments. It was pointed out that many such establishments create materials in which they own IPRs (eg research papers in universities and photographic images in museums), and that these IPRs help to generate revenue (eg through technology transfer and licensing) that is ploughed back into funding further research and development. Other submissions suggested that public sector bodies should at least be entitled to generate a reasonable return on investment, otherwise they would have little incentive to continue developing the information and content in question. The same rationale applies to public service broadcasters.

On 5 June 2002, the Commission published a draft Directive. The text of the Directive showed that the Commission had acknowledged some of the concerns of public sector cultural and educational establishments.

The Directive will apply to "public sector bodies", which definition includes a "body governed by public law". These include not only public bodies obviously within the public sector, such as local authorities or government departments, but also bodies "meeting needs in the general interest, not having an industrial or commercial character", and financed for the most part by the state (whether local, regional or central). In the UK this will clearly include universities and research institutes as well as museums and galleries funded by central or local government.

Rather than applying to "information", the Directive applies to "documents". However, documents are very broadly defined as "any content whatever its medium". It is clear that it would include not only "raw data" (eg statistics and the like), but also content in visual or audiovisual form, such as photographs, negatives, film and so on. Picture libraries, catalogues, collections management databases and the like would therefore all be included.

However, the proposed Directive only applies to existing documents held by public sector bodies that are "generally accessible", ie to which there is a right of access under the rules of the Member State. This principle needs further fleshing out.

In the UK it probably means that there will be an overlap with the Government’s rules on access to information, as modified in time to reflect the principles embodied in the Freedom of Information Act.

The Commission’s draft Directive contains some important exceptions. It does not apply:

a) to documents the supply of which is an activity falling outside the scope of the task of the public sector bodies concerned [. . .];

b) to documents or parts of documents for which third parties hold intellectual property rights;

c) to documents containing personal data, unless the re-use of such personal data is admissible [. . . ];

d) to documents held by public service broadcasters and their subsidiaries, and by other bodies or their subsidiaries for the fulfilment of a public service broadcasting remit;

e) to documents held by educational and research establishments, such as schools, universities, research facilities, archives and libraries; and

f) to documents held by cultural establishments, such as museums, libraries, archives, orchestras, operas, ballets and theatres.

It will be noted that there is no exception covering documents in which the public sector bodies themselves hold IPRs. This is in spite of the statement in the Directive that it is intended to be consistent with international conventions on IPR ownership, notably the Berne Convention and GATT TRIPS. In other words, the Commission is prepared, in effect, to ignore publicly-owned IPRs in favour of achieving its political and economic objectives.

The Directive departs in another respect from the original proposals contained in the Working Document. This had suggested that documents should be made available on a cost-recovery basis only. The Commission appears to have recognised that public sector bodies are entitled to make a return on the investment made in developing content and content-based products. The draft Directive provides that access to public sector information is to be provided at cost "together with a reasonable return on investment".

The draft Directive is now under discussion both in the Council of Ministers and in the European Parliament. Initial indications are that amendments will be tabled by MEPs to roll back the changes made to the draft Directive as published by the Commission to something more closely resembling the original Working Document. In particular, the rapporteur of the EP Committee responsible for scrutinising the Directive (Mr W H van Velzen, a Dutch MEP) has proposed the

following amendments:

1. deleting the exceptions applicable to cultural and educational establishments altogether; and

2. deleting the reference to a "reasonable return on investment", which would therefore only entitle public sector bodies to recover their marginal costs of supply.

Bodies such as universities, research institutes, museums and galleries should be very concerned to try to persuade Mr van Velzen that they are not in the same category as government information agencies. In a number of Member States, including the UK, many of these bodies are not regarded as being "part of" government. Indeed, public policy and financial constraints have increasingly driven many of these institutions to find ways of raising funds themselves, often on the basis of commercialising their information assets. These sources of funding appeared to be under threat of extinction if the amendments put forward by Mr van Velzen were to be adopted.

The Commission’s original proposals created a risk that, if they were given legislative force, the creation and distribution of content by such bodies as universities and museums would in large measure have been rendered uneconomic, and the funds generated by them would have dried up. Concerted lobbying led to the inclusion of exemptions in the draft Directive. However, the amendments being tabled in the European Parliament could lead to the removal of these exemptions. Private sector information companies and 3G operators must be rubbing their hands with glee.