Johan van Oldenbarnevelt verschijnt voor zijn rechters

European Parliament Approves Updated Directive on Open Data and Public Sector Information

On Thursday the European Parliament voted 550-34 (with 25 abstentions) to approve the Directive on Open Data and Public Sector Information. The directive updates the rules controlling the re-use of public sector information held by public sector bodies of the Member States and also governs the re-use of documents held by public undertakings, such as water, energy, transport, and postal services. The recast directive is expanded to cover publicly funded research data. It states that charges related to the provision of PSI should in principle be limited to marginal costs related to the initial provision of the documents. And it also prioritises the identification and sharing of “high-value” datasets that should be available for free re-use via APIs.

The purpose of the refreshed directive is to promote the use of open data and stimulate innovation in products and services in the Digital Single Market. The directive says Member States should approach the re-use of PSI according to the principle of “open by design and by default.”

Communia has been active in the discussion on the legal framework for re-use of public sector information in the EU for many years, producing position papers in 2012, 2014, and 2018, and providing feedback to the recast proposal in July 2018. We’ve supported changes that would expand the scope of the directive, and pushed for increased legal clarity around aspects such as standard open licenses for PSI. The final Directive addresses some of our concerns, but after it is formally approved by the Council of the EU, it will be up to the Member States to implement the recast directive rules into their national laws. Transposition must be completed within two years.

Below we discuss a few pieces of the directive we’ve been following.

Article 8: Standard licenses

Article 8 states, “In Member States where licences are used, Member States shall ensure that standard licences for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically. Member States shall encourage the use of such standard licences.” Standard licenses, as defined in Article 2, means “a set of predefined re-use conditions in a digital format, preferably compatible with standardised public licences available online.”

The nod to standard open licensing is a step in the right direction. The directive says, “Any licences for the re-use of public sector information should in any event place as few restrictions on re-use as possible, for example limiting them to an indication of source.” The Commission should continue to push for liberal open licenses for the sharing of open data and public sector information (as they’ve even done internally with an updated policy for sharing Commission documents), because if Member States remain unclear about which licenses are acceptable for application to PSI, it could create confusion or interoperability problems. The European Commission’s 2014 guidelines provided a decent baseline for Member States, and recommended using Creative Commons 4.0 licenses or the CC0 Public Domain Dedication for the sharing of PSI. Communia urged the Commission to codify these guidelines, and also ensure accurate licensing metadata across PSI and open data portals that reflects those licensing options. The updated PSI Directive reaches for this ideal, but it’ll be up to the Member States to fully implement standardised, permissive open licensing requirements.

Article 9: Practical arrangements

Article 9 discusses practical arrangements such as the development of tools and online portals that make it easier for users to find and re-use open data and PSI. In relation to open licensing, it is important that search tools and repositories properly mark datasets and other documents with the appropriate license metadata, otherwise, users won’t be able to find and know how they can re-use a particular resource. For example, on there are about 50 license options listed, including non-standard licenses, or standard open licenses with different spellings of what appears to be the same license. It will be important for Member State and EU-wide portals to ensure correct implementation of standard open licenses, and provide education to PSI publishers and re-users alike.

Article 10: Research data

Article 10 outlines how publicly funded research data has been included within the scope of the updated directive. It obliges Member States to “support the availability of research data by adopting national policies and relevant actions aiming at making publicly funded research data openly available (‘open access policies’) following the principle of open by default and compatible with FAIR principles.” This is a welcome expansion of the PSI directive and could help ensure — alongside various other EU policies promoting open access to research — improved re-use of publicly funded scientific data. While the provision is right to include important exemptions for personal data protection and security, other considerations such as “intellectual property rights,” “knowledge transfer activities,” and “legitimate commercial interests” will surely prevent at some PSI from being re-used. As described at TechDirt, it could now be “permissible for companies and academics to invoke “confidentiality” and “legitimate commercial interests” as reasons for not releasing publicly-funded data … Clearly, that’s a huge loophole that could easily be abused by organizations to hoard results.”

Article 12: Exclusive arrangements

The 2013 PSI directive update expanded to cover museums, archives, and libraries (including university libraries), and the current recast is claimed to “limit the conclusion of agreements which could lead to exclusive re-use of public sector data by private partners.” However, the rules on exclusive arrangements, particularly as they relate to cultural heritage institutions and the private companies they contract with for activities like digitisation, doesn’t seem to uphold the principle of broad re-use of cultural works considered PSI under the directive. Article 12 states, “where an exclusive right relates to the digitisation of cultural resources, the period of exclusivity shall in general not exceed ten years.” Apparently this exclusive giveaway to restrict re-use “might be necessary in order to give the private partner the possibility to recoup its investment.” The text claims that this window of exclusivity be “as short as possible, in order to respect the principle that public domain material should stay in the public domain once it is digitised.” It’s an insult to the public and our publicly funded cultural heritage institutions that private companies engaged in digitisation should be permitted to control access to re-use of these works for 10 years (or even longer), possibly keeping digitised works that should be in the public domain under private control.

Coda: Database rights

An important clarification in the final directive text is the provision that where databases fall under the scope of the updated PSI Directive, the public sector body responsible for the database may not use the Database Directive to prevent or restrict the reuse of documents. It’s a good (and long overdue) revision.

As we’ve seen, the recast of the PSI Directive takes positive steps to expanding re-use potential for publicly funded open data. But as usual, the devil will be in the details as Member States soon begin to transpose the directive into the national legislation. When they do, they should look for ways to ensure as broad re-use as possible by supporting standard open licenses, building repositories and portals that make it easy for users to find and re-use PSI, and limiting the exploitation of carve-outs by private entities who want to skirt the rules and keep publicly funded open data in the dark.

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