Last week, rapporteurs Aura Salla and Marina Kaljurand published their draft report on the Digital Omnibus. The report contains an important and welcome proposal to strengthen the rules on exclusive arrangements for the digitisation of cultural heritage. At the same time, it leaves untouched one of the most problematic parts of the Commission proposal: the weakening of the open licensing framework for public sector information.
Towards a maximum exclusivity period
Amendment 30 to Article 32k(3) tries to address a long-standing weakness in the Open Data Directive. Under the current framework, exclusive arrangements for the digitisation of cultural resources should “in general” not exceed ten years. In practice, this formulation has proven too weak and it has allowed long-term exclusive arrangements to persist, often without review or meaningful public scrutiny. As a result, an estimated 2 million Public Domain books are currently under exclusivity.
The draft report takes an important step in the right direction. It replaces the current aspirational language with the rule that exclusivity “shall not exceed 10 years”, and it goes even further by reducing the maximum period to five years for very large enterprises designated as gatekeepers under the Digital Markets Act. However, it stops short of establishing a maximum duration. While it provides that no renewal or extension shall be permitted unless the public sector body demonstrates that continued exclusivity remains “strictly necessary, proportionate, and in the public interest”, it nevertheless leaves the possibility of renewal on the table. This is certainly an improvement over the current framework, but if the objective is to ensure that exclusivity remains exceptional and temporary, the cleaner solution would simply be to prohibit renewals altogether.
Exclusive digitisation agreements exist to allow a private partner to recover the costs of digitisation. Once the agreed maximum period has expired that objective should be considered fulfilled. At that point, the public interest should shift decisively towards unrestricted access and re-use. Allowing renewals, even under stricter conditions, risks recreating precisely the uncertainty and prolonged exclusivity that the amendment is trying to address. Removing the renewal clause altogether would provide more legal certainty.
Protecting the Public Domain from re-enclosure
The amendment also introduces two other important safeguards. First, it states that digitised cultural resources that are in the Public Domain shall remain in the Public Domain after digitisation. This makes clear that digitisation partnerships cannot be used as a mechanism to re-enclosing materials that belong to everyone, reflecting the same principle enshrined in Article 14 of the DSM Directive.
Second, the amendment also clarifies that contractual terms may not be used to extend the practical effects of exclusivity beyond the period permitted by law. In other words, they cannot be used to continue restricting the re-use of digitised Public Domain materials after the lawful exclusivity period has ended. This is in line with the existing obligation that the digitised copy provided to the public sector body must be available for re-use once exclusivity expires.
Taken together, these elements represent a strong improvement, bringing Article 32k(3) closer to the underlying purpose of the Open Data Directive: digitisation should increase access to the Public Domain, not create new legal or contractual barriers to its re-use.
The missing piece: open licences
While the draft report takes an important step on exclusive agreements, it does not address the open licensing problem in the Digital Omnibus industry proposal. This is a significant omission.
The Commission proposal introduces the possibility for public sector bodies to establish special conditions for the re-use of data and documents by very large enterprises. The stated objective is understandable, as very large commercial actors derive substantial value from public sector data and public institutions should be able to recover costs or require contributions to the sustainability of data infrastructures. But this objective should be pursued through differentiated charging for the supply of data, not through differentiated licensing conditions for re-use.
Open government data depends on a simple principle: once public sector information is made available for re-use, everyone receives the same permissions. Standard open licences provide legal certainty and reduce transaction costs. At the same time, allowing public sector bodies to move away from open licenses is not necessary to make very large enterprises pay more. Public sector bodies can charge for access services, bulk downloads, APIs, etc while keeping the underlying data available under open licences. Charging and licensing serve different purposes and should remain separate policy tools.
The draft report should therefore be amended to preserve standard open licences as the default in Article 32r. Without such amendments, the Digital Omnibus risks undermining the approach that has made the EU open data framework valuable not only for research and innovation, but also for building citizen trust and helping them make informed decisions.
