During the summer, the Digital Omnibus (aka Data Omnibus) saw some welcome developments in the European Parliament. Members of the European Parliament tabled amendments both to the joint LIBE/ITRE draft report and to the JURI’s draft opinion, targeting the legal provisions we are most concerned about: Articles 32k(3) and 32r(4).
The Data Omnibus is a contentious file due to the proposed changes to the EU data protection regime. More than 1800 amendments were tabled in the main Committees alone. Therefore, we were pleased to see the (less debated) proposals concerning exclusive digitisation arrangements and open licenses not being neglected. In this blogpost, we analyse the amendments related to those provisions, and assess how they address COMMUNIA’s concerns.
Preserving open licences for public sector information
As we explain here, in its quest to ensure the sustainability of public data infrastructures, the Commission is proposing to revert two decades of EU policy on open government data policy through the Data Omnibus. The Omnibus introduces changes to the Open Data Directive (see Article 32r, paragraph 4) that would grant public sector bodies the ability to impose actor-specific licence conditions for the re-use of public sector information. As a result, the public sector would effectively be discouraged from using standard open licenses.
While the Commission’s objective is to make very large companies – which derive substantial value from public sector data – contribute fairly to the provision of public services, this change would increase transaction costs and legal uncertainty for research, innovation and open knowledge projects. It would also negatively impact government transparency and undermine interoperability. For these reasons, COMMUNIA together with more than 30 other civil society organisations from across Europe published an open letter with a call to MEPs to remove the possibility for user-based license conditions.
Our calls seem to have resonated well with several political groups in the ITRE and LIBE Committees. The amendments to the main Committees’ draft report include deletion amendments of Article 32r(4) tabled by S&D, Renew, the Greens and GUE (see Amendments 831 to 834), which we strongly support. They also include one amendment by the EPP, which maintains paragraph 4 but only allows public sector bodies to charge very large enterprises differently, deleting all references to differentiated licensing (see Amendment 835), in line with our views on differentiated charging. These amendments, together with the amendments to Article 32r(2) and (3) by S&D, the EPP, Renew, the Greens and GUE, defending the open data principles (see Amendments 826 to 830), put the main Committees in a good position to reach a compromise text that fully addresses our concerns regarding open government data policies.
In JURI, however, the proposed amendments to the Committee’s draft opinion are far from satisfactory. By the time our open letter reached Parliament, the deadline for amendments in this Committee had already passed, which might explain why only two MEPs, from the Greens and EPP, tabled amendments seeking to reinforce the open data principles (see Amendments 221 to 226 to Article 32r(2) to (4)). These amendments nevertheless fall short of eliminating the possibility to impose special re-use conditions on specific categories of users, thus resulting in the exact same contradictions that we had identified in the rapporteur’s draft: open licenses for all cannot coexist with customised licenses for some.
Limiting exclusive digitisation agreements
As we explain here, currently, exclusive arrangements for the digitisation of cultural resources are not limited in time. The Open Data Directive states that they should “in general” not exceed ten years, subject to review, but in practice these arrangements often persist beyond that period without further scrutiny. This negatively impacts competition and public re-use of digitised copies of Public Domain works from European collections. Thus, COMMUNIA argues that the Data Omnibus should address this issue by eliminating the possibility to renew those agreements once they reach a 10-year limit.
Here too, several political groups share our concerns by tabling amendments to the ITRE/LIBE draft report and to the JURI draft opinion relating to Article 32k(3). The amendments tabled by S&D and GUE in the main committees (see Amendments 807 and 808) and the one tabled by the EPP in JURI (see Amendment 218) fully address our concerns, by setting a maximum duration of 10 years and removing the possibility of renewal after that period. These three amendments also follow in the footsteps of the rapporteurs and further propose to reduce the maximum period to five years for very large enterprises designated as gatekeepers under the Digital Markets Act – a welcome addition, which we support.
The 5-year limit rule for gatekeepers is repeated in two other amendments tabled in the main Committees (Amendment 810 by the Greens and Amendments 809 and 811 by Renew), but these amendments fail to impose a maximum exclusivity period. The Renew proposal leaves the possibility of extension untouched and simply requires the review to “include an assessment of whether the exclusive right remains strictly necessary, proportionate and in the public interest.” The Greens proposal, on the other hand, eliminates the renewal clause but retains the wording “in general”, leaving open the possibility that exclusive arrangements could exceed the stated maximum term. We maintain that exclusivity should remain temporary and that, once the maximum term is reached, no further extensions should be possible. Therefore we cannot support these two amendments.
What’s next
The Data Omnibus is currently in the compromise process in the different Committees. While the JURI Committee vote is currently expected in November, the amendments tabled there are unlikely to result in a compromise text that adequately protects the existing open licensing framework for government data. The amendments tabled in the main Committees, on the other hand, offer a promising basis for addressing our concerns on both open government data and exclusive digitisation arrangements. We may, however, need to wait a bit longer to see whether those amendments make it into the final report.