Proposal for a Directive of the European Parliament and of the Council on the re-use and commercial exploitation of public sector documents
Date: 2002-06-05
Institutions: European Commission
Subjects: access to information, approximation of laws, data protection, dissemination of information, fixing of prices, public service

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Official Journal of the European Communities

24.9.2002

Proposal for a Directive of the European Parliament and of the Council on the reuse and
commercial exploitation of public sector documents

(2002/C 227 E/17)

COM(2002) 207 final — 2002/0123(COD)

(Submitted by the Commission on 5 June 2002)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social
Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure set out in Article 251
of the Treaty,

Whereas:

(1) The Treaty provides for the establishment of an internal
market and of a system ensuring that competition in the
internal market is not distorted. Harmonisation of the
rules and practices in the Member States relating to the
exploitation of public sector information contributes to
the achievement of these objectives.

(2) The evolution towards an information and knowledge
society should influence the life of every citizen in the
Community, inter alia, by affording new ways of gaining
access to and acquiring knowledge.

(3) Digital content plays a predominant role in this evolution.
Content production has given rise to rapid job creation in
recent years and continues to do so. Most of these jobs
are created in small emerging companies.

(4) The public sector collects, collates and disseminates
such as
of
tourist, business, patent and educational

information in many
geographical,
information.

activity,

areas

(5) One of the principal aims of the establishment of an
internal market is the creation of conditions to promote
the development of Community-wide services. Public
sector information is an important primary material for
digital content products and services and will become an
even more important content resource with the devel-
opment of wireless content services. A broad cross-border
in this
geographical coverage will also be essential
context.

(6) There are considerable differences

in the rules and
practices in the Member States relating to the exploitation

of public sector information resources, which constitute
barriers to bringing out the full economic potential of this
key information resource. A minimum harmonisation of
national rules and practices on the reuse and commercial
exploitation of public sector information should therefore
be undertaken, in cases where the differences in national
regulations and practices or the absence of clarity hinder
the smooth functioning of the internal market and the
proper development of the information society in the
Community.

a minimum harmonisation

legislative activities at national

at
(7) Moreover, without
Community level,
level,
which have already been initiated in a number of
Member States in order to respond to the technological
challenges, might
significant
differences. The impact of such legislative differences
and uncertainties will become more significant with the
further development of the information society, which has
already greatly increased cross-border exploitation of
information.

in even more

result

(8) A general framework for the conditions of reuse of public
sector information is needed in order to ensure fair,
proportionate and non-discriminatory conditions for the
re-use of such information.

(9) This Directive should apply to documents held by public
sector bodies that are generally accessible. Where public
sector bodies allow the reuse of such documents they
should be reusable for commercial and non-commercial
purposes under certain conditions. Public sector bodies
should be encouraged to make available for reuse any
documents held by them that are generally accessible.

(10) The different formats used by public sector bodies can
represent a considerable burden for private organisations
that want
to reuse information taken from several
sources. The need to digitise paper-based documents or
to make them mutually
files
to manipulate digital
compatible
reduced by requiring public
should be
bodies to make the documents available in all pre-existing
formats.

(11) The time limit

for

for

time for

replying to requests

reusing
information resources should be reasonable and in line
with the equivalent
the
document, in order not to prevent the creation of new
aggregated information products and services. Excessive
time-lags between the request to reuse documents and
the decision on these requests can hamper the estab-
lishment of data collections covering the whole of the
Community, since the slowest country will set the pace.

to access

requests

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(12) Where charges are made, the total income from allowing
access to or reuse of these documents should not exceed
the total costs of producing, reproducing and dissemi-
nating them, together with a reasonable profit margin.
Production includes collection and collation, and dissemi-
nation may also include user support. Recovery of costs,
together with a reasonable profit margin, constitutes an
upper limit to the charges, as any excessive prices should
be precluded. The public sector bodies should have the
possibility of applying lower charges or of not charging at
all, and Member States should encourage public sector
bodies to make documents available at charges that do
not exceed the marginal costs
reproducing and
disseminating the documents.

for

same

(13) Charges and other conditions for the reuse of public
sector information should be non-discriminatory. This
also applies to the commercial activities of public sector
bodies that fall outside their public task. This means that
the
to the
commercial activities of public sector bodies as to the
activities of other actors in the market. In particular the
associated with the
charges
conditions
those
provision of public information as
commercial activities
those
applied to third parties requesting such information.

for
should be the same as

and other

conditions

should

inputs

apply

input

clear

(14) Ensuring that the conditions for reuse of public sector
information are
a
pre-condition for the development of a Community-wide
information market. Therefore all applicable conditions
for the reuse of the information should be made clear
to the potential reusers.

and publicly

available

is

may sometimes be necessary. This may be the case if no
commercial publisher would publish the information
without such an exclusive right.

(17) The reuse of public sector information resources should
fully respect the particular obligations of the authorities
under Directive 95/46/EC of the European Parliament and
of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data
and on the free movement of such data (1). In particular,
personal data collected by public sector bodies should not
be used for purposes that are incompatible with the
for which
original, explicit and legitimate purpose(s)
they were
data or
of personal
collected. Reuse
documents containing personal data for commercial
purposes may generally not be compatible with such
in cases where the
original purposes, especially not
collection of personal data by the public authority is
obligatory and where the data subjects cannot refuse the
processing of their personal data.

(18) The intellectual property rights of third parties are not
affected by this Directive. The Directive does not affect
the existence or ownership of intellectual property rights
of public sector bodies, nor does it limit the exercise of
these rights in any way beyond the boundaries set by this
Directive. The obligations of this Directive should apply
only in so far as the obligations imposed are compatible
with the provisions of international agreements on the
protection of
in particular
intellectual property rights,
the Berne Convention for the Protection of Literary and
Artistic Works and the Agreement on Trade-Related
Aspects of Intellectual Property Rights (2). Public sector
bodies should, however, exercise their copyright
in a
way that facilitates reuse.

(15) Standard licence agreements that are available online can
also play an important role in this respect. In all cases
where the public sector bodies exercise their intellectual
the
property rights and/or charge for
documents
should be
available to facilitate transactions and to increase their
transparency.

standard licence

the reuse of

agreements

(16) Public sector bodies should not run the risk of conflict
with the basic competition policy principles and should
not adopt conduct that could constitute an abuse of a
dominant position. Exclusive
arrangements between
public sector bodies and private partners for the exploi-
tation of the documents can lead to considerable market
distortions. In many cases these arrangements will have a
national basis,
thereby preventing other Community
players from entering the market and reusing the same
information. However, for the purposes of providing a
service of general economic interest, an exclusive right
information resources
to reuse specific public sector

companies

added-value

(19) The objectives of the proposed action are to facilitate the
creation of Community-wide information products and
services based on public sector information, to enhance
an effective cross-border use of public sector information
by private
information
for
products and services, to limit distortions of competition
on the Community market and to avoid a situation
whereby a different pace in the Member States
in
dealing with the reuse of public sector information leads
to further disparities. In accordance with the principles of
subsidiarity and proportionality as set out in Article 5 of
the Treaty, such objectives cannot be sufficiently achieved
by the Member States and can therefore, in view of the
intrinsic Community scope and impact of the said action,
be better achieved by the Community. This Directive
confines itself
to the minimum required in order to
achieve those objectives and does not go beyond what
is necessary for that purpose,

(1) OJ L 281, 23.11.1995, p. 31.
(2) OJ L 336, 23.12.1994, p. 214.

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Official Journal of the European Communities

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HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

1.

‘public sector body’ means the State regional or local auth-
orities, bodies governed by public law, associations formed
by one or several such authorities or one or several such
bodies governed by public law;

Article 1

2.

‘body governed by public law’ means any body:

Subject matter and scope

This Directive

establishes a minimum set of

1.
rules
governing the commercial and non-commercial exploitation
by any citizen of the Union, and any natural or legal person
residing or having its registered office in a Member State of
existing documents held by public sector bodies of the Member
States which are generally accessible.

2.

This Directive shall not apply to:

(a) documents the supply of which is an activity falling outside
the scope of the public task of the public sector bodies
concerned as defined by law or by other binding rules in
the Member State, or in the absence of such rules as
defined in line with common administrative practice in
the Member State in question;

(a) established for the specific purpose of meeting needs in
interest, not having an industrial or

the general
commercial character;

(b) having legal personality; and

(c)

financed, for the most part by the State, or regional or
local authorities, or other bodies governed by public
law; or subject to management supervision by those
bodies; or having an administrative, managerial or
supervisory board, more than half of whose members
are appointed by the State, regional or local authorities
or by other bodies governed by public law;

(b) documents or parts of documents for which third parties

hold intellectual property rights;

3.

‘document’ means:

(c) documents containing personal data, unless the reuse of
such personal data is admissible under the provisions of
Community law and national measures on the processing
of personal data and the protection of privacy;

(d) documents held by public service broadcasters and their
subsidiaries, and by other bodies or their subsidiaries for
the fulfilment of a public service broadcasting remit;

(e) documents held by educational

and research estab-
lishments, such as schools, universities, research facilities,
archives and libraries;

(f) documents held by cultural

such as
libraries, archives, orchestras, operas, ballets

establishments,

museums,
and theatres.

3.
The provisions of this Directive shall only apply in so far
as the obligations imposed are compatible with the provisions
of international agreements on the protection of intellectual
in particular the Berne Convention for the
property rights,
Protection of Literary and Artistic Works and the Agreement
on Trade-Related Aspects of Intellectual Property Rights.

Article 2

Definitions

For the purpose of this Directive the following definitions shall
apply:

(a) any content whatever its medium (written on paper or
stored in electronic form or as a sound, visual or audio-
visual recording);

(b) any part of such a content;

4.

‘generally accessible document’ means any document
to
which a right of access is granted under the rules estab-
lished in the Member State for access to documents as well
as any document used by public sector bodies as an input
for information products or services which they commer-
cialise;

5.

‘reuse’ means the use by persons or
legal entities of
documents held by public sector bodies for commercial or
non-commercial purposes;

6.

‘personal data’ means data as defined in Article 2(a) of
Directive 95/46/EC.

Article 3

General principle

Where public sector bodies allow the reuse of documents that
are generally accessible, these documents shall be reusable for
commercial or non-commercial purposes in accordance with
the conditions set out in Chapters II and III.

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Official Journal of the European Communities

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CHAPTER II

CONDITIONS FOR REUSE

Article 4

Availability

Public sector bodies shall make their documents available
1.
in any pre-existing format or language,
through electronic
means where possible and appropriate. This does not imply
an obligation for public sector bodies to create documents or
to adapt documents in order to comply with the request.

2.
Public sector bodies cannot be required to continue the
production of a certain type of documents with a view to the
reuse of these documents by a private sector organisation.

Article 5

Time and requirements in case of a negative decision

1.
Public sector bodies shall process the requests for reuse
and shall make the document available to the applicant within
a reasonable time that
longer than the timeframes
foreseen for treating requests to accessing the documents,
through electronic means where possible and appropriate.

is not

2. Where no time-limits have been established, public sector
the
bodies
documents to the applicant within a timeframe of not more
than three weeks after its receipt.

and shall deliver

shall process

request

the

refusal

the relevant provisions of

In the event of a negative decision, the public sector
3.
to the
bodies shall communicate the grounds for
applicant on the basis of
the
access regime in that Member State, one of the exceptions in
Article 1(2) or Article 3. Where a negative decision is based on
Article 1(2)(b), the public sector body shall include a reference
to the natural or legal person who is the rightholder or alter-
natively to the licensor from which the public sector body has
obtained the
sector body
relevant material. The public
concerned shall not be held liable in the event of such
reference being incorrect.

Any negative decision shall contain a reference to the
4.
means of redress in case the applicant wishes to appeal the
decision.

Article 6

Charging principles

the total

income from allowing
Where charges are made,
access to or the reuse of these documents shall not exceed
the cost of producing, reproducing and disseminating them,
together with a reasonable return on investment. The burden
of proving that charges are cost-oriented shall
lie with the
public sector body charging for the reuse of the document.

Article 7

Non-discrimination

Any applicable conditions for the commercial reuse or

1.
exploitation of documents shall be non-discriminatory.

2.
Any applicable conditions for the non-commercial reuse
of documents shall be non-discriminatory for comparable
categories of reusers.

3.
If documents are used by a public sector body as input
for its commercial activities which fall outside the scope of its
public tasks, the same charges and other conditions shall apply
to the supply of the documents for those activities as apply to
other users, where reuse is allowed.

Article 8

Transparency

Any applicable charges for the reuse of documents held
1.
by public sector bodies shall be pre-established and published,
through electronic means where possible and appropriate.

Any other

2.
reuse of
documents shall be clearly expressed and published, through
electronic means where possible and appropriate.

conditions

applicable

the

for

Article 9

Facilitating reuse

Member States shall ensure that standard licence agreements
for the commercial exploitation of public sector information
are available in digital
format, and can be processed elec-
tronically.

CHAPTER III

FAIR TRADING

Article 10

Prohibition of exclusive arrangements

exploit

1.
The reuse of documents shall be open to all potential
actors in the market, even if one or more market players
already
these
documents. Contracts or other arrangements between the
public sector bodies holding the documents and third parties
shall not grant exclusive rights that constitute an unjustified
restriction of competition or the reuse of the information.

added-value

products

based

on

If, for reasons such as the provision of a service in the
2.
the
public interest, an exclusive right
validity of the reason to grant such an exclusive right shall
be subject
in any event, be
reviewed every three years. The exclusive arrangements estab-
lished after the entry into force of this Directive shall be open
to public inspection.

to regular review, and shall,

is deemed necessary,

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CHAPTER IV

FINAL PROVISIONS

Article 11

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by [31 December 2004] at the latest. They shall
forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

Article 12

Review

This Directive shall be subject to a review within three years of
its entry into force.

in particular address the scope of

this
The review shall
Directive regarding the public sector bodies covered. It shall
also address the overall impact of the Directive in increasing
the availability of public sector information for reuse and its
impact on government revenue.

Article 13

Entry into force

This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

Article 14

Addressees

This Directive is addressed to the Member States.