Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the re-use and commercial exploitation of public sector information (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)

2002/0123 (COD)

Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the re-use and commercial exploitation of public sector information

1. BACKGROUND

Transmission of the proposal to the Council and the European Parliament (COM(2002) 207 final - 2002/0123(COD)) in accordance with article 95(1) of the Treaty: 26 June 2002

Opinion of the European Economic and Social Committee: 11 December 2002

Opinion of the Committee of the Regions: 21 November 2002

Opinion of the European Parliament - first reading: 12 February 2003

2. OBJECTIVE OF THE COMMISSION PROPOSAL

The proposal aims at a minimum harmonisation of the rules for the re-use of public sector information in the European Union. Public sector information (e.g. geographical information, business information, traffic information) is an important economic asset. It provides raw material for new digital products and services and is a key data input for e-commerce trading. Information held by the public sector can become a strong asset for new wireless applications.

The rules for the re-use of this information resource vary widely throughout the Union. This hampers the development of added-value cross-border services that use this information as an input. A European framework for the re-use of public sector information will increase certainty and thus foster investments in creativity and innovation in the area of content provision and in other sectors.

3. COMMISSION OPINION ON THE AMENDMENTS ADOPTED BY PARLIAMENT

Of the 23 amendments adopted by the European Parliament, 10 amendments are accepted by the Commission (amendments 1, 3, 4, 14, 24, 26, 27, 28, 32 and 34) and 8 amendments are accepted in part or in principle (amendments 7, 10, 12, 13, 18, 20, 21 and 31).

3.1. Amendments accepted by the Commission

Amendment 1 changing the words 'document' and 'documents' into 'information' throughout the proposal for a directive. The Commission can accept this change including the consequential grammatical changes.

Amendment 3 further clarifying what types of information are collected by the public sector.

Amendment 4 indicating that the tradition of the exploitation of public sector information by public sector bodies has developed in many different ways and that this should be taken into account.

Amendment 14 (article 1, paragraph 2, point (fa), new) clarifying that information which constitutes trade or business secrets falls outside the scope of the directive.

Amendment 24 (article 6, paragraph 1(a), new) giving the right to an applicant who considers that charges made by the public sector body exceed those allowed under the charging article of the directive to request a review of the charges.

Amendment 26, (article 7, paragraph 3) taking out the words 'where re-use is allowed'.

Amendment 27 (article 8, paragraph 1) taking out the words 'and appropriate'.

Amendment 28 (article 8, paragraph 2) taking out the words 'and appropriate'.

Amendment 32 (article 12, paragraph 2(a), new) linking the review more clearly to the objectives of the directive.

Amendment 34, aligning the wording of recital 12 with the wording of article 6.

3.2. Amendments accepted in part or in principle by the Commission

Amendment 7 incites public sector bodies to use public data-gathering systems that are not dependent on the use of specific software and states that all the information must be presented not only in graphic form but also in textual mode, in order to enable people with sensory difficulties to use it. The Commission agrees that the formats used by public sector bodies can have an influence on the possibilities to re-use information. The Commission therefore adds the following sentence to the original recital number 10, to take into account the fact that the use of specific formats can be a barrier to re-use: 'It is therefore necessary to promote public data-gathering systems which are not dependent on the use of specific software.'

An obligation to present information both in graphic form and textual mode to enable people with sensory difficulties to use it, as proposed by this amendment and by amendment number 18, cannot be accepted within the context of this directive. It imposes a burden on public sector bodies that cannot be justified in the light of the objectives of the directive. Moreover it is linked to issues of access to information rather than to issues of re-use of information or the way public sector bodies operate in the information market and therefore goes beyond the scope of the directive.

Amendment 10 establishes the link between the accessibility of information and the right to knowledge and states that public administrations should promote the re-use of information made available by them. The Commission cannot accept the first two sentences of this amendment that are more about the access to information than about the re-use of information. It can, however, accept the last sentence of the amendment, provided the word 'therefore' that links it to the former sentences is taken out.

Amendment 12 (article 1, paragraph 1) adds the notion of re-use, in line with the title of the directive and adds the notion of practical accessibility (a reference to the asset lists of amendment 31). The Commission can accept the first addition. As to the notion of 'practical accessibility', the Commission accepts the idea of the amendment, but proposes to replace 'and the practical accessibility' by 'and the practical modalities facilitating this re-use and exploitation'. This will avoid the incorrect suggestion that this document is about access to information.

Amendment 13 (article 1, paragraph 2, point (d)) changes documents 'held by' public service broadcasters which are excluded from the scope of the directive into documents 'within the power of disposal of' public broadcasters. The Commission can accept the proposed change, but does not think it is necessary in the light of the justification of the amendment. The amendment seems to be based on a translation issue in the German language version.

Amendment 18 (article 4, paragraph 1) obliges public sector bodies to make information available in a format that is not dependent on the use of specific software and states that, where possible and appropriate all the information must be presented not only in graphic form but also in textual mode, in order to enable people with sensory difficulties to use it. The Commission agrees that the formats used by public sector bodies can have an influence on the possibilities to re-use information. The Commission therefore proposes the following reformulation of article 4, paragraph 1 to take into account the fact that the use of specific formats can be a barrier to re-use: 'Public sector bodies shall make their information available in any pre-existing format or language, through electronic means where possible. This does not imply an obligation for public sector bodies to create information or to adapt information in order to comply with the request. Public sector bodies shall make available their own documents in a format which as far as possible is not dependent on the use of specific software.'

An obligation to present information both in graphic form and textual mode to enable people with sensory difficulties to use it, cannot be accepted within the context of this directive. It imposes a burden on public sector bodies that cannot be justified in the light of the objectives of the directive. Moreover it is linked to issues of access to information rather than to issues of re-use of information or the way public sector bodies operate in the information market and therefore goes beyond the scope of the directive.

Amendment 20 (article 5, paragraph 1) proposes to take into account the purpose of the re-use in determining the timeframes that are reasonable for treating requests for re-use. The amendment is valuable in drawing the attention to the change of the value of some information over time, which makes a quick delivery of the information necessary to allow re-use (for example for dynamic information such as traffic information or weather information). The Commission reformulates article 5 (1) as follows: 'Public sector bodies shall make information available to the applicant, through electronic means where possible, within a reasonable time that is not longer than the timeframes foreseen for treating requests to accessing the information and that takes into account the purpose of the re-use.'

Amendment 21 (article 5, paragraph 3) relates to the obligation for public sector bodies to provide information on the identity of the third party right-holder. It limits this obligation to cases where the public sector body is able to provide such information. Furthermore it establishes liability for public sector bodies for giving a wrong reference in cases involving bad faith. The Commission accepts the first part of this amendment. Although the spirit of the second part of the amendment might be acceptable, the presence of "bad faith" is hard to assess and therefore this part of the amendment is not taken on board.

Amendment 31 (article 9, paragraph 1 a, new) establishes an obligation for Member States to make available lists of main content assets held by public sector bodies. The Commission accepts the first sentence of this amendment and proposes to reformulate the second sentence as follows: 'Such lists shall be made available for free and shall indicate which are the public sector bodies responsible for making the information available for re-use'.

3.3. Amended proposal

Having regard to Article 250 (2) of the EC Treaty, the Commission modifies its proposal as indicated above.