The EU’s Digital Omnibus Proposal has sparked controversy, especially over the planned changes to the data protection regime. But the package goes beyond privacy rules. One amendment to the Open Data Directive in particular could have serious consequences, potentially undermining open projects such as the Wikimedia projects.
As part of its “simplification” agenda, the Commission proposes incorporating the Open Data Directive into the Data Act. In itself, that isn’t necessarily a bad thing. Several EU instruments already govern the conditions under which public sector information is made available, and bringing them together in a single regulation could reduce legal fragmentation. As a bonus, turning the Open Data Directive into a regulation would also make it directly applicable across the EU—though it remains to be seen how much that would change in practice, given that the proposal introduces only a limited set of substantive amendments (for an overview of the changes, see Stephen Wyber’s article on Tech Policy Press).
The Open Data Directive
As we noted at the time, the 2019 amendment to the 2003 Public Sector Information Directive—renamed the Open Data Directive—strengthened the principle of “open by default” and expanded the law’s scope to cover publicly funded research. And while the Directive asked Member States to encourage the use of standard licences, it unfortunately stopped short of requiring the use of open standard licences. And although the Commission has adopted Creative Commons licences for its own outputs, the Directive never made their use mandatory.
In recent years, more public sector bodies across the EU have embraced Creative Commons licences (at least for data) and moved away from divergent national licensing schemes, many of which are incompatible with Wikimedia or other open projects. The Omnibus proposal, however, risks complicating the reuse of public sector information once again.
Special conditions for very large enterprises…
The Proposal would introduce a subtle but consequential change by allowing public sector bodies to attach special conditions in licences for the re-use of data and documents by very large enterprises (Article 32r, see also recital 25):
(4) Public sector bodies may establish special conditions for the re-use of data and documents by very large enterprises. Such conditions shall be proportionate and should be based on objective criteria. They shall be established taking into consideration the economic power, or the ability of the entity to acquire data, including in particular a designation as a gatekeeper under Regulation (EU) 2022/1925 [the Digital Markets Act].
… to make them pay up
The reason for this change is to allow higher charges for “very large enterprises” (Article 32q):
(6) Public sector bodies may set out higher charges for the re-use of data and documents by very large enterprises […]. Any such charges shall be proportionate and based on objective criteria, taking into account the economic power, or the ability of the entity to acquire data, including in particular a designation as a gatekeeper under Regulation (EU) 2022/1925 . In addition to the elements listed in paragraph 1 of this Article, such charges may cover the cost of collection, production, reproduction dissemination and data storage and where applicable the cost of anonymisation or measures to protect the confidentiality of the data or documents, together with a reasonable return on investment.
Until now, the Open Data Directive operated under the principle that “the re-use of documents shall be free of charge” (Article 6(1)). However, charges were permitted to recover marginal costs, limited to reproduction, provision, and dissemination, as well as (where relevant) anonymisation and measures to protect commercially confidential information. With the proposed change, public sector bodies could also charge very large enterprises for access to works where no marginal costs occurred.
It is understandable that very large players—especially “gatekeepers” under the DMA—may be expected to contribute more to the provision of public services. Even within the open movement, organisations such as Open Future have argued that large corporations can free-ride on open knowledge to strengthen their market position and, ultimately, their control over public goods.
The problem
The risk is that introducing “special conditions” for some reusers will skew incentives around licensing and reuse terms. In practice, Member States (or public sector bodies) may be tempted to operationalise differential treatment through licence conditions targeted at “very large enterprises.”
That would undermine the Open Definition’s non-discrimination requirement: “Open means anyone can freely access, use, modify, and share for any purpose” (emphasis added). At worst, it could encourage the expansion of conditional licences, making these sources impossible to reuse in public-interest projects with strict licensing requirements (Wikimedia Commons accepts CC0, CC BY, and CC BY-SA; Wikidata requires CC0). It would also mean that datasets by different public sector bodies would come with different, potentially incompatible licence terms, making it difficult to combine them and to share the resulting dataset.
Our Ask: Revisit the provision with stakeholders
A better approach would be to raise revenue through service conditions rather than licensing restrictions—for example, by offering different terms for API access for gatekeepers on the one hand, and smaller enterprises and non-profit uses on the other (for a concrete proposal, see Open Future’s impulse paper on this subject). If that is the intent, it does not require any changes to Art. 32r, which sets out the rules for standard licenses.
Compared to the proposed changes to the GDPR, this may look relatively innocuous. Yet it could still have far-reaching consequences for open projects, but also for many other reuse scenarios. What stands out is the poor process: a more transparent and deliberate approach could have produced a stronger proposal. We stand ready to engage with the co-legislators to improve this provision.
