Last June after a relatively brief 18 months of negotiations, the European Parliament adopted a proposal for a revised PSI Directive. Quite something if one takes into account the ‘horizontal’ and far reaching effects of the new rules, affecting the information position of almost any public sector body across Europe. So what’s in the new Directive? And how should we judge it?
"Today we can celebrate our efforts to bring government data closer to citizens and businesses in Europe. We are finally getting the much needed legal framework to boost the economy and create new jobs." This is how EU Commissioner Neelie Kroes announced the adoption of the Directive of the European Parliament and of the Council amending Directive 2003/98/EC on re-use of public sector information in June 2013. Ms Kroes had initiated the process in December 2011, acknowledging evidence (in particular demonstrated in the the POPSIS Report and the Vickery Report) that European socio-economic potential was unexploited and complaints from large groups within the Open Data community that the 2003 legal framework required to be reviewed. This legal framework had been put in place by the European legislator with the aim of opening up Member States’ public informational resources in order to stimulate economic growth and enhance transparencies and to take away barriers that may refrain them to flow freely across Europe.
Slight sense of disappointment
Truly believing in the spirit of Open Data, but aware of the sensitivity of the subject especially in these times of economic crisis, I must confess that an appraisal of the outcome against the ambitions set in December 2011 leaves a slight sense of disappointment, as some of the more forceful, much-needed measures have been watered down. In my view, the original proposal held some remarkable provisions that would have significantly changed the equation between public data holders and re-users. Alas, they have been lost in the trenches of negotiations in Parliament and the Council in particular.
No charges and a watchdog
The first novelty the proposal had sought to introduce was a stringent pricing regime for public sector information (PSI), as a rule disallowing public sector bodies (PSBs) from charging above the marginal (reproduction, provision and dissemination) cost level, which is practically zero in a digital environment. Exceptions were to be allowed only if this would entail instant bankruptcy of the PSB. In such exceptional cases, higher charges could be set. The PSB had to show that the charges were determined by objective, transparent and verifiable criteria and obtain approval from an independent authority. That was the second novelty introduced. The independent re-use watchdog was also to be endowed with specific regulatory powers regarding PSI re-use, serving as a means of redress. Its decisions were to be binding and, in doing so, would mimic the fairly successful models used in the United Kingdom and Slovenia.
Lost in battle
Alas, we lost both. Now the Directive, by its article 4(4), also allows the independent authority to be an existing national judicial authority. This means lengthy and costly procedures instead of swift decisions, which are much needed by re-users, in particular small and medium-sized enterprises (SMEs). Article 6 continues to refer to a marginal cost regime by default, but the system is as solid as Swiss cheese: PSBs that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public task, as well as documents for which the PSB is required to generate sufficient revenue to cover a substantial part of the costs relating to their collection, production, reproduction and dissemination are exempted. This means that costs can be recovered, including a reasonable return on investment (being the ‘old’ article 6 regime). However, even this cloud has silver lining: terms are to be set up-front and published, including the structure and the principles underlying the charges.
Synchronization access and re-use
Of course the revised Directive also introduces some new elements that are a step forward. Firstly, it introduces a new paradigm. Where under the old regime PSBs could disallow re-use of publicly accessible documents, the new Directive synchronizes access and re-use: if there is a right of access, then there is a right of re-use. And although PSBs can still impose conditions, including charges, under article 8(1), those conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition. This implies a kind of ‘compulsory licence’ for material protected by (Crown) copy and data base rights.
Secondly, the new Directive addresses the issue of accessibility. According to consideration 11, PSBs should make documents available through open and machine readable formats and together with their metadata, at the best level of precision and granularity, where possible and appropriate, in a format that ensures interoperability, e.g. by processing them in a way consistent with the principles governing the compatibility and usability requirements for spatial information under the INSPIRE Directive. Although not incorporated in the actual provisions — which are to be transposed into national legislation — this is a clear encouragement to the Member States to rely on the INSPIRE framework also for other areas of PSI. This being said, the Directive (article 5(2)) explicitly states that this does not imply an obligation to create or adapt documents or provide extracts in order to comply with that paragraph if this would involve disproportionate effort, going beyond a simple operation. Put differently, the success of expanding the INSPIRE regime will depend on the willingness of individual PSBs. One would expect that this will happen in those sectors that are close to or partly reliant on INSPIRE-related information.
The final judgement
My feeling is that if we ever had a chance to truly accelerate the adoption of Open Data in a fairly harmonised European context, this was definitely the moment: the Open Data movement had managed to arouse political attention and we had a Commissioner with a genuine connection to the dossier, where the PSI Directive is fuelled and driven by competition law spirit and concepts. On the other hand, looking at the bigger picture, the new Directive is the next and necessary step of a process started more than 14(!) years ago with the adoption of the 1999 Green Paper ‘Public Sector Information : A Key Resource for Europe’. It is part of the transition that we are witnessing: governments are gradually returning to their core public tasks and enabling companies and citizens to avail of opportunities (and take on responsibilities no longer catered for) and to fill the vacuum created by this retreat. This appears to be an irreversible process. The watering down by the Council (read: Member States, including some of the big ones like the UK) of the charging and redress provisions should be put in context of the time needed to reconsider public data holders’ funding models that are moving from fee-based models to general State budget financing. This shift is unmistakably taking place, judging from the ever increasing number of PSBs adopting Open Data policies across Europe. The new Directive will catalyse this process, where the transposition obligation will put these points on the political agenda for the next two years.
Marc de Vries has professional degrees in both law and economics (Utrecht 1991). He has been active in the field of PSI re-use for more than 15 years, both at the national and European levels. Any comments are welcome: firstname.lastname@example.org | www.thegreenland.eu | +31 653897002 | http://www.linkedin.com/pub/marc-de-vries