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

Johan van Oldenbarnevelt verschijnt voor zijn rechters
but transposition will be key
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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. Continue reading

The European Commission’s new proposal for re-use of public sector information: improving but some fixes still required

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PSI Directive proposal: some fixes still required
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Today, Communia sent feedback to the European Commission on its proposal to amend the Directive on the re-use of public sector information. This is the second time the Commission has proposed to update the legal framework for access to and re-use of Public Sector Information (PSI) since the Directive was adopted in 2003. The most important changes from the previous amendment (2013) was the introduction of a genuine right to re-use by making  all content that can be accessed under national access to documents laws reusable, and expanding the scope of the Directive to cover libraries, museums, and archives.

This time, the European Commission has proposed to make more research data available, extends the scope to public undertakings (including transportation data), and further limits the scenarios in which public entities may charge for data. This proposal was preceded by public consultations (see COMMUNIA’s response).

We support the proposal to amend Directive, but at the same time we want to draw attention to some issues where the proposal should be improved. Below are our recommendations.Continue reading

Database Directive Study: Options for Neutralising the Sui Generis Right

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Finally a way out of the database rights maze?
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A few weeks ago the European Commission published a study on the ongoing evaluation of the Database Directive. The report was led by the Joint Institute for Innovation Policy, and contains an analysis of last year’s public consultation, as well as information from expert interviews and a stakeholders’ workshop.

The Commission’s evaluation study confirms some of our suspicions that the sui generis right is doing little to increase the production of databases in the EU. The report notes, “the effectiveness of the sui generis right, as a means to stimulate investment on databases, remains unproven and still highly contested” (p. ii). Perhaps not surprisingly, the report shows a split between the views of database producers and users. Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside other means of protection, such as contractual terms, copyright and technological measures” (p. ii).

The evaluation of the Database Directive

To recap the issue, the study is about Directive 96/9/EC on the legal protection of databases (Database Directive). The Directive came into force on 27 March 1996. It attempted to harmonise the copyright rules that applied to original databases, and also created a new sui generis right to protect non-original databases on which major investments have been made by database makers.

Last year the Commission launched a public consultation on the application and impact of the Database Directive. Communia responded to the consultation, and published a policy paper with recommendations for the future of the Database Directive. We argued that even though the Directive has successfully harmonised the legal protection of databases with regard to copyright, there is no clear evidence that the sui generis right has improved the interests of businesses or improved EU competitiveness by increasing the production of databases. And the introduction of the sui generis right has increased the complexity and confusion for database producers as well as users.

Our recommendations included the following:

  • repeal the sui generis database right;
  • harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
  • if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right; and
  • set a maximum term so that there cannot be perpetual extensions of database protection.

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New policy paper on the 2017 review of PSI Directive

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chance to improve reuse in Europe
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Today COMMUNIA published a policy paper on the 2017 review of the Directive on Public Sector Information (PSI Directive). The Directive first came into effect in 2003, and was amended in 2013 to clarify that 1) PSI should be presumed to be “reusable by default,” 2) museums, archives, and libraries were subject to the Directive provision, 3) acquisition fees were limited to marginal costs of reproduction, and 4) documents were to be made available for reuse using open standards and machine readable formats.

The Commission’s 2017 review could lead to further changes to improve reuse of public sector information. We made several recommendations to strengthen access and reuse of PSI.

First, we recommend that scientific research results resulting from public funding should be made available under a permissive reuse rights regime as PSI. The Commission should ensure that policy efforts to improve access to publicly funded scientific research are complementary—and not in conflict with—each other.

Second, we suggest that a revised Directive should ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislations.

Third, we recommend the Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.

Finally, we suggest that a revised Directive should ensure that CHIs and public sector bodies that are alike in their aims and funding structure must only be permitted to charge fees for costs directly incurred in providing access. We emphasise the importance of suitable state funding for CHI which will also enable them to make as many resources reusable as possible.

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Poland restricts access to digitized cultural heritage

Soon the most valuable digital works of art and culture may be available all around Europe, free of charge, licenses, watermarks, and in open, machine-readable formats.  Together with their metadata they can be used to not only promote rich heritage of our culture, but also to build innovative applications, web services and boost the creative economy all across the Europe. This is the promise made by the European Union, as contained in the new Directive on the re-use of public sector information.

But establishing a single framework, which enables the cross-border offer of products and services is not an easy thing. According to the last report of the PSI Group, Member States are struggling with many challenges while implementing the Directive into domestic law. As might be expected, the correct choice of licensing, charging and redress mechanisms are especially hard to solve.

In the recent Communia policy paper on the re­use of public sector information in cultural heritage institutions, we were  concerned that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. Work on the implementation of the Directive into Polish law shows that this scenario can happen in Poland.

In November 2014, Poland has published a draft proposal of the new bill, which assumes that documents held by cultural heritage institutions are within the scope of the Directive only if they are in the public domain, either because they were never protected by copyright or because copyright has expired.

The problem, therefore, lies in the fact that the remaining resources, even if the institution owns the copyright, have been excluded from the scope of the proposed law. The Ministry of Culture and Digital Heritage, which has been in favour of this very narrow reading of the Directive, believes that it should not apply either to works created by employees of institutions or to works, for which third parties have transferred rights to cultural institutions. What does this mean in practice?

Most importantly, re-use rules will not apply to such important information as descriptive metadata, bibliographic and catalog data. Without metadata and descriptions heritage resources will become useless for those wanting to re-use digital cultural resources. Similarly, public cultural institutions – for example modern art galleries – will still be able to restrict access to the information that they hold, even though it has been produced with public funds.

And such an implementation is in our opinion [see our policy paper p. 4-6]  contrary to the very principle that inspired both the 2003 and 2013 Directives and could lead to the creation of unnecessary hurdles to the re­use of public sector information.

What is maybe even worse, Polish cultural institutions will also be able to impose additional conditions – restricting commercial use (promotion or advertising) or allowing only certain forms and scope of reuse. Even for works that are in the public domain.

This implementation has the combined support of collective management organizations, museums (which in general are much more conservative than libraries in their approach towards digitization and sharing of cultural objects) and the Polish Ministry of Culture and Digital Heritage. One of the concerns raised is that the private sector will be able to build competitive services, museum catalogues or images banks, to those provided by the museums. But wasn’t it the idea of new PSI Directive? In general, it is surprising to see these organizations favour an approach that limits as much as possible reuse of cultural works – since such sharing is explicitly defined as part of their public mission.

All around the world, public domain is treated as the information that is free from intellectual property barriers. Anyone can use and reuse it, remix, combine and translate without obtaining permission. For commercial and non-commercial purposes. But no one can ever own it. In theory. Observing the legislative process in Poland, it becomes clear that in some countries the implementation of the new PSI Directive can indeed not only do more harm than good with regard to access to cultural heritage, but even threaten the idea of the public domain.

We hope that ultimately the Ministry of Administration and Digital Affairs – which is responsible for drafting the bill – will propose a law that supports a modern approach to digital cultural heritage and protects the Public Domain.  And that with time the Ministry of Culture and Digital Heritage will adapt Poland’s cultural policy as well so that allowing access and reuse is seen as part of the public mission, and not as threat to culture.

New policy paper on the re-use of public sector information in cultural heritage institutions

In 2013 the European Union enacted Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (PSI). The 2013 directive is an important pillar of the European Union’s open data strategy. It establishes the general principle that public sector bodies’ available information shall be reusable in accordance with a number of conditions, such as open formats, terms and conditions. Member States are asked to transpose the new rules into domestic law by 18 July 2015, i.e. about nine months from now. One of the major new features of the PSI directive is the inclusion in its scope of libraries (including university libraries), museums and archives. However, if Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions.

The directive attempts for the first time to define a general framework for sharing cultural heritage information all around Europe. Under the amended directive, libraries, museums and archives are now asked to make parts of their collections available for reuse. In particular, documents in the Public Domain (either because never protected or because the protection expired) are under the general re-use rule of Art. 3(1), while documents in which libraries, museums and archives hold intellectual property rights are under the derogatory rule of Art. 3(2): only when institutions allow re-use are they under the obligation to ensure that the general re-use conditions are respected. Accordingly, the re-use requirements of the directive only apply to works that are not covered by third-party intellectual property rights.

While laudable in principle, the inclusion of cultural heritage institutions in the scope of the directive raises a number of questions related to how Member States should implement the new PSI directive. If Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions. In order for the directive to meet its overall objective, i.e. to contribute to opening up the resources held by Europe’s cultural heritage institutions, three main recommendations for member states can be formulated:

  1. Member States should implement the Directive in line with the principles established by Article 3 and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive.
  2. Member States must not implement the Directive in such a way that encourages or requires institutions to charge for the reuse of works that they make available for reuse. The decision to charge for reuse must be up to the individual institutions. If this is not the case the Directive will limit access and reuse of the public domain.
  3. For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions, Member States should encourage the use of Open Definition-compliant licenses, such as the Creative Commons licenses or the Creative Commons Zero mechanism. This applies in particular to metadata produced by cultural heritage institutions, in the limited cases where these metadata can attract copyright (such as long form descriptions of cultural heritage objects).

For a deeper analysis of these issues see the full policy paper on the re-use of public sector information in cultural heritage institutions.

EU commission to member states: Use Open Definition compliant licenses for your Public Sector Information

Last week the European Commision published Guidelines on recommended standard licences, datasets and charging for the re-use of documents. These Guidelines are intended to help member states with the implementation of the amended Public Sector Information directive that was adopted last year. With these guidelines the Commission hopes to provide ‘reference material for all institutions in all EU countries, in order to align their practices and make them more transparent and predictable for potential re-users’.

The guidelines put a lot of emphasis on the legal aspects of PSI. As part of this the Commission highlights the fact that not all documents need to be licensed, especially those that are in the Public Domain:

A simple notice (e.g. the Creative Commons public domain mark) clearly indicating legal status is specifically recommended for documents in the public domain (e.g. where IPR protection has expired or in jurisdictions where official documents are exempt from copyright protection by law).

In addition to this important clarification the Commission also provides clear recommendations for the use of open licenses:

Several licences that comply with the principles of ‘openness’ described by the Open Knowledge Foundation to promote unrestricted re-use of online content, are available on the web. They have been translated into many languages, centrally updated and already used extensively worldwide. Open standard licences, for example the most recent Creative Commons (CC) licences (version 4.0), could allow the re-use of PSI without the need to develop and update custom-made licences at national or sub-national level. Of these, the CC0 public domain dedication is of particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility for re-users and reduces the complications associated with handling numerous licences, with possibly conflicting provisions. If the CC0 public domain dedication cannot be used, public sector bodies are encouraged to use open standard licences appropriate to a member state’s own national intellectual property and contract law and that comply with the recommended licensing provisions set out below.

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Responding to the European Commission consultation on PSI: Minimizing restrictions maximizes re-use

The Communia Association has responded to the European Commission’s consultation on recommended standard licenses, datasets and charging for the re-use of public sector information (PSI). The Commission asked for comments on these issues in light of the adoption of the new Directive on re-use of public sector information. See our response here. The Directive 1) brings libraries, museums, and archives under the scope of the Directive, 2) provides a positive re-use right to public documents, 3) limits acceptable charging to only marginal costs of reproduction, provision, and dissemination, and 4) reiterates the position that documents can be made available for re-use under open standards and using machine readable formats. Communia recognizes the high value of PSI not only for innovation and transparency, but also for scientific, educational and cultural benefit for the entire society.

We have been providing feedback to the Commission during this process. We last wrote about the Directive in June, and questioned why the Commission had not yet clarified what should be considered a “standard license” for re-use (Article 8). The dangers of license proliferation–which potentially leads to incompatible PSI–is still present. But it’s positive that the Commission is using this consultation to ask specific questions regarding legal aspects of re-use.

Part 3 of the questionnaire deals with licensing issues. One question asks what should be the default option for communicating re-use rights. We believe that there should be no conditions attached to the re-use of public sector information. The best case scenario would be for public sector information to be in the public domain. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into as close as possible to the public domain to ensure unrestricted re-use.

Communia calls on the Commission and Member States to ensure that core datasets are released for maximum re-use, either by exempting PSI from copyright and sui generis database rights altogether, or by requiring that these rights are waived under the CC0 Public Domain Dedication.

Another question first states that the Commission prefers the least restrictive re-use regime possible, and asks respondents to choose which condition(s) would be aligned with this goal. Again, we think that every condition would be deemed restrictive, since the best case scenario would be for PSI to be removed from the purview of copyright protection through law or complete dedication of the PSI to the public domain using CC0.

Some conditions would be particularly detrimental to interoperability of PSI. An obligation not to distort the original meaning or message of public sector data should be deemed unacceptable. Such an obligation destroys compatibility with standard public licenses that uniformly do not contain such a condition. The UK’s Open Government License has already removed this problematic provision when it upgraded from OGL 1.0 to OGL 2.0. Any condition that attempts to discriminate based on the type of use or user, or imposes additional requirements on the re-user, should be avoided. Examples include: 1) fees for cost recovery, 2) prohibitions on commercial use, modifications, distortion, or redistribution, and 3) unreasonable attribution requirements. Copyleft conditions can threaten interoperability with existing “attribution-only” standard licenses.

In addition to mentioning CC licensing as a common solution, the questionnaire notes, “several Member States have developed national licenses for re-use of public sector data. In parallel, public sector bodies at all levels sometimes resort to homegrown licensing conditions.” In order to achieve the goals of the Directive and “to promote interoperable conditions for crossborder re-use,” the Commission should consider options that minimize incompatibilities between pools of PSI, which in turn maximize re-use. As far as we are concerned that means that governments should be actively discouraged from developing their own licenses. They should consider removing copyright protection for PSI by amending copyright and/or PSI law or waive copyright and related rights using CC0.

Part 4 of the questionnaire addresses charging options for PSI re-use. While the Communia Association did not provide an opinion on this matter, Federico Morando, Raimondo Iemma, and Simone Basso have provided an in-depth analysis on the Internet Policy Review website.

European Parliament Approves Updated PSI Directive

Yesterday, the European Parliament formally adopted the updated directive on the reuse of public sector information. The announcement confirms the draft changes made to the directive in April of this year. Some notable changes (see here for a more comprehensive breakdown of the changes):

  • libraries, museums, and archives are now be covered under the directive

  • all legally public documents are subject to reuse under the directive

  • any charges are be limited to marginal costs of reproduction, provision and dissemination

  • documents and metadata are to be made available for reuse under open standards and using machine readable formats

European Commission Vice-President Neelie Kroes praised the adoption of the new rules on open data:

[T]o make a real difference you need a few things. You need prices for the data to be reasonable if not free – given that the marginal cost of your using the data is pretty low. You need to be able to not just use the data: but re-use it, without dealing with complex conditions […] We are giving you new rights for how you can access their public data for re-use, but also extending rules to include museums and galleries. That could open up whole new areas of cultural content, with applications from education to tourism. Indeed, Europeana already has over 25 million cultural items digitised and available for all to see – with metadata under an open, CC0 licence.

The Communia Association has been keenly interested and involved in seeing public sector data freed for widespread use by making it broadly available in the public domain. In January 2012 we released a policy paper with suggested changes to the PSI directive. Communia is pleased to see that cultural heritage institutions are included under the scope of the amended directive. Another positive aspect of the new reuse directive is the narrowing of the language around acceptable licensing for public sector information through the removal of text encouraging the development of additional open government licenses. At the same time, the Commission has not clarified what should be considered a “standard license,” thus there is an ongoing concern potential for Member states to create diverging and potentially incompatible license implementations. And, the EU lawmakers chose not to address the Communia recommendation of explicitly including public domain content held by libraries, museums and archives under the reuse obligation of the amended directive. But all in all, the updated directive is a step in the right direction.

The new directive will be implemented by Member states over the next two years. In the interim, the Commission will be looking for guidance on licensing issues (among other things) from EU-funded projects such as LAPSI 2.0. Communia is an active member in the LAPSI group. LAPSI will be developing PSI licensing guidelines and good practices as a deliverable to the Commission.

Petition in support of a single European Data License

In line with an issue raised in our policy paper on the proposed amendments to PSI Directive there is now a Spanish petition that asks the Europeana Commission to propose a single open data license to be used for Public Sector Information across all EU member states:

Dear Neelie Kroes,

We sincerely admire the courage and innovacion [sic] spirit shown by the European Commission in the revision of the ReUse of Public Sector Information Directive. However, as a member of the Opendata community I think the new Directive will be incomplete without the definition of an Opendata Licence shared by all the Member States Public Administration.

We encourage the European Commission to propose the Member States an Opendata Licence, badly needed to create a ReUse of PSI single market. The alternative to a shared opendata licence in the European Union would be a fragmented market similar to the current intellectual property rights landscape in Europe.

Let’s build a single opendata market with a single opendata licence.

Of course a open data space with fragmented licensing conditions cannot never be as bad as the overall intellectual property rights landscape in Europe, but the overall argument is very solid. If the Commission wants to unlock the potential of open data for all of Europe then the best instrument to do so is a single, standardized open data license for all of Europe.