CELEX: 52011PC0877
Language: en
Date: 2011-12-12
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL Amending Directive 2003/98/EC on re-use of public sector information

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		52011PC0877
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL Amending Directive 2003/98/EC on re-use of public sector information /* COM/2011/0877 final - 2011/0430 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM

1.                      
1.       CONTEXT OF THE PROPOSAL
1.1.                
Grounds for and objectives of the proposal

Directive 2003/98/EC of the European
Parliament and the Council on the re-use of public sector information (‘PSI
Directive’) was adopted on 17 November 2003. The Directive aimed to facilitate
the re-use of PSI throughout the Union by harmonising the basic conditions for
re-use and removing major barriers to re-use in the internal market. The
Directive contains provisions on non-discrimination, charging, exclusive
arrangements, transparency, licensing and practical tools to facilitate the
discovery and re-use of public documents.
Article 13 of
the Directive called for a review of the application of the Directive before 1
July 2008. The review was carried out by the Commission and resulted in the
publication of Communication COM(2009) 212[1].
It found that, despite the progress made, a number of
barriers still persisted, namely attempts by public
sector bodies to maximise cost recovery, as opposed to benefits for the wider
economy, competition between the public and the private sector, practical
issues hindering re-use, such as the lack of information on available PSI, and
the mindset of public sector bodies failing to realise the economic potential.
The Commission concluded that a further review should be carried out by 2012,
when more evidence on the impact, effects and application of the Directive
would be available. This proposal of the Commission is the result of the second
review.
Public sector
information is an important primary material for digital content products and
services with a large hitherto unexploited potential. The general objective of
this Union action is to contribute to economic growth and job creation by unlocking the economic potential of government-owned data through improved conditions for the exploitation of PSI. The general objective is fully in line
with the Union’s horizontal strategies, in particular the Commission’s Europe
2020 Strategy, launched on 3 March 2010 with the aim of turning Europe ‘into
a smart, sustainable and inclusive economy delivering high levels of
employment, productivity and social cohesion’.
The opening up
of PSI for re-use will also have a positive effect on the transparency,
efficiency and accountability of governments and contribute to citizen
empowerment.
Ultimately
therefore, the PSI Directive aims to catalyse a change of culture in the public
sector, creating a favourable environment for value-added activities resulting
from the re-use of public information resources.
The regulatory
challenge is to provide the market with an optimal legal framework to stimulate
the digital content market for PSI-based products and services, including its
cross-border dimension, and to prevent distortions of competition on the Union
market for the re-use of PSI. The Commission proposal therefore targets
the chain of commercial and non-commercial exploitation of PSI, to ensure
specific conditions at different stages of the chain so that access is improved
and re-use facilitated.
Data must be unlocked and made discoverable
and effectively available for re-use. Financial and non-financial transaction
costs must remain as low as possible. Re-users must have access to an efficient
and effective redress mechanism to be able to enforce their rights. The
original Directive must be reinforced in order to overcome the remaining
barriers, e.g. lack of information about what data are actually available,
restrictive or unclear rules governing access and re-use conditions,
discouraging, unclear and inconsistent pricing where the re-use of information
is chargeable, and the overall excessive complexity of the process for
obtaining permission to re-use PSI, in particular for SMEs. In addition,
re-users and incumbent ‘hybrid’ public sector bodies (combining public tasks
with the commercial exploitation of data) must enjoy a level playing field and
competitive conditions unrestrained by any discriminatory treatment or
unjustified exclusive agreements for the exploitation of PSI. Finally,
the internal market for PSI re-use will thrive only if regulatory and practical
borders to re-use across the Union are removed and the same types of data are
available on similar, if not the same, terms and conditions irrespective of
their national origin.
Benefits to be gained from improved access
and facilitated re-use include: innovation in products based directly on PSI
and in complementary products; reduced transaction costs and efficiency gains
in the public sector; and, increasingly, the combining of different public and
private information to produce new goods.

1.2.                
General context

Public bodies produce, collect or hold a
wealth of information and content, ranging from statistical, economic or
environmental data to archival material, collections of books or works of art.
The digital revolution has significantly increased the value of this resource
for innovative products or services based on data as raw material.
The economic importance of opening data
resources, including public data, is now widely recognised. For example, according
to a 2010 report by The Economist, data have become ‘an economic raw input
almost on par with capital and labour’[2],
while the Digital Britain Final Report recognises data as ‘an innovation
currency … the lifeblood of the knowledge economy’[3]. A recent study estimates the
total market for public sector information in 2008 at € 28 billion across
the Union[4].
The same study indicates that the overall economic gains from further opening
up public sector information by allowing easy access are around € 40
billion a year for the EU27. The total direct and indirect economic gains from
PSI applications and use across the whole EU27 economy would be in the order of
€ 140 billion annually.
Beyond fuelling the innovation and
creativity that stimulate economic growth, open public data also empower
citizens, thereby enhancing participatory democracy and promoting transparent,
accountable and more efficient government.
The challenge for the Directive is to
provide the market with an optimal legal framework to facilitate and stimulate the
commercial and non-commercial re-use of public open data. Ultimately therefore,
the Directive and its revision aim to catalyse a change of culture in the
public sector, creating a favourable environment for value-added activities
resulting from the re-use of public information resources.
The review of the Directive thus forms part
of the Digital Agenda for Europe and the Europe 2020 strategy aiming for smart,
sustainable and inclusive growth[5].
The review is in fact a key action of the Digital Agenda (key action 1c).

1.3.                
Consistency with other policies
1.3.1.          
PSI policy and Union rules of competition

One of the aims of the PSI Directive is to
limit distortions of competition on the Union market and thus create a level
playing field for all potential re-users of PSI. In this regard, the PSI
Directive contains a specific formulation of the more general Union rules on
competition, namely Article 10(2) — prohibiting cross-subsidies — and Article
11 — prohibiting, with exceptions, exclusive agreements.

1.3.2.          
PSI policy and environmental policy

The PSI Directive, Directive 2003/4 on
public access to environmental information (the Aarhus Directive) and Directive
2007/2/EC establishing an Infrastructure for Spatial Information in the EU
(INSPIRE) together constitute a set of Union measures to ensure the widest
possible dissemination of environmental information held by public bodies.
These Directives, although not sharing common immediate objectives, complement
one another and share the common objective of enhancing the transparency and
availability of public data.
The Directive on public access to
environmental information contributes to greater awareness of environmental
matters, a free exchange of views, more effective participation by the public
in environmental decision-making, and, ultimately, a better environment. It
supports the Commission’s policy on the re-use of PSI, as wide access to
information is a precondition for its re-use, and environmental data are a very
important source of information for the creation of new products and services.
The INSPIRE Directive plays a similar role where spatial data are concerned.
In addition, the PSI Directive is of
crucial importance for the overall coherence of the forthcoming Shared
Environmental Information System.

1.3.3.          
PSI and integrated maritime policy

In September 2010 the Commission issued a
Communication to the European Parliament and to the Council — Marine Knowledge
2020 — aimed at unlocking the potential of Europe’s marine knowledge. Its
three-pronged approach, seeking to make the use of marine data easier and less
costly, to foster competitiveness of marine data users and to enhance
understanding of Europe’s seas and oceans, is consistent with and reinforces
the Commission’s policy towards the re-use of PSI.

1.3.4.          
PSI policy and common transport policy

One of the 40 initiatives put forward in
the new Transport White Paper[6]
is the creation of framework conditions to promote the development and use of
intelligent systems for interoperable and multimodal scheduling, information,
online reservation systems and smart ticketing.
This initiative is directly related to the
Action Plan[7]
for the Deployment of Intelligent Transport Systems (ITS) for road transport
and its interfaces with other modes, adopted by the Commission in December
2008, and to Directive 2010/40/EU[8]
of 7 July 2010 on the framework for the deployment of Intelligent Transport
Systems in the field of road transport and for interfaces with other modes of
transport. These two instruments aim to accelerate and coordinate the
deployment of ITS applications, including Union-wide real-time traffic
information services and Union-wide travel information services.
Under Directive 2010/40/EU, the Commission
will adopt binding specifications for ‘the provision of Union-wide real-time
traffic information services’ and for ‘the provision of Union-wide travel
information services’ to address the provision of traffic regulation data by
the transport authorities and to guarantee access by private companies to
relevant public data.
Such specifications, but also a possible
follow-up legislative proposal to ensure access to and re-use of public
transport information, could contribute significantly to the Commission’s
policy on the re-use of PSI, by giving citizens or companies the right to
access and re-use road traffic or public transport information for new products
and services based on the highly dynamic content of such data. This supports
the Commission’s policy on the re-use of PSI.

1.3.5.          
PSI policy and the initiative on open access to
scientific information

The Commission’s objective in the area of
scientific information is to maximise the benefits of information technologies
(internet, supercomputing networks, data mining) for better access to and
easier reuse of scientific knowledge. ‘Open access’ policies pursue the goal of
making scientific articles and research data freely accessible to the reader on
the web. The Commission intends to take steps to promote access to and
preservation of scientific information, including publications and data of
research projects funded by the Union budget.
The Commission’s objectives in this area
are very closely aligned with those of the PSI Directive in the sense that both
aim to make public information more widely available in Europe for access and
re-use.

1.3.6.          
PSI policy and policy on digitisation and
cultural heritage

The digitisation of cultural collections promotes access to culture
by making European cultural heritage held by Europe’s cultural institutions —
books, maps, audio, films, manuscripts, museum objects, etc. — more easily
accessible to all for work, study and leisure. At the same time, digitisation
turns these resources into a lasting asset for the digital economy, creating
many opportunities for innovation, although the full exploitation of digital
cultural assets is still embryonic. Business models are being explored and
commercial activities are just starting. The goals of ensuring the wide
availability of public sector information (PSI Directive) and placing digitised
cultural assets at the disposal of creative and innovative businesses
(digitisation policy) are entirely consistent and mutually reinforcing and
fully comply with the European Agenda for Culture and the Council Workplan on
Culture.

2.                      
RESULTS OF CONSULTATIONS WITH INTERESTED PARTIES
AND IMPACT ASSESSMENTS
2.1.1.          
Public consultation

A wide-ranging public online consultation
on the review of the Directive was held in accordance with established
Commission standards. The consultation was open from 9 September 2010 until 30
November 2010. It was published on the Commission’s ‘Your Voice in Europe’
webpage:     
(http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=psidirective2010).
A press release was issued upon the launch
of the open consultation. The launch was also publicised on Twitter, on the
Commission’s Information Society PSI Website            
(http://ec.europa.eu/information_society/policy/psi/index_en.htm)
and on the ePSIplatform portal[9].
In addition, stakeholders were informed about the consultation and invited to
submit their views through their associations or via individual email messages.
All interested parties, including governments, public-sector content holders
(including from currently excluded sectors), commercial and non-commercial
re-users, experts, academics and citizens, were invited to contribute.
The consultation yielded 598 replies, which
were published on the Commission’s PSI website[10].
The responses encompassed all the various actors in the PSI value chain: PSI
content holders (8 %), other public authorities not holding any PSI (4 %),
PSI re-users (13 %), academics and experts (23 %), citizens (48 %)
and respondents identified as ‘other’ (4 %).
An overwhelming
majority of respondents signalled that PSI re-use had not reached its full
potential and supported further action to stimulate re-use and promote the
cross-border provision of PSI-based products and services. Many respondents favoured
amendments to the Directive, ranging from some 40 % of PSI content holders
up to over 70 % of re-users. Suggestions for legislative amendments and
for additional soft-law guidance did not differ significantly among specific
categories of respondents, but most supported amending the general principle to
establish a right to re-use and adopting additional measures (to open up public
data resources and to facilitate re-use, e.g. asset lists of available
documents, simplified or no licensing conditions, marginal costs, etc.).
The question of
charging also received much attention from all respondents. It is clear from
many submissions that clarification and guidance are required on many charging
issues, including charging strategies versus free access, as well as the
admissible tariffs. Charging for re-use based on either full or partial cost
recovery was not supported by stakeholders. Frequently, respondents called for
either a ban on charging or clarification of the term of ‘reasonable return on
investment’. Most supported free non-commercial re-use. Many arguments for and
against the marginal costs solution were advanced by respondents in all
categories, and there is no consensus on this point.
Finally,
respondents across all sectors generally called for support and deployment
measures to promote PSI re-use, including across borders. These measures range
from guidance on many topics (licensing, charging, data quality) to support for
the development of national data portals and for a European single access point
to data.
In summary,
responses to this consultation demonstrate that, compared with the 2009 review,
the culture of re-use has advanced in many Member States (in particular the UK,
France, and Denmark). However, much remains to be done to maximise the
potential of PSI re-use and to fully exploit the rules established by the 2003
PSI Directive, several provisions of which require amendment or clarification.
In addition, the lack of consensus or trends among respondents with respect to
the issue of charging for the re-use of PSI demonstrates that no
one-size-fits-all solution will do and differences in the needs of both PSI
holders and PSI re-users must be taken into account in order not to inhibit
data re-use.
The responses
received were taken into account in the assessment of options that led to the
package of legislative and soft-law measures included in this proposal.

2.1.2.          
Collection and use of expertise

Over the last few years, the Commission has
conducted the following studies to assess the different aspects of the PSI
re-use market, including its economic valuation: MEPSIR (Measuring European
Public Sector Information Resources)[11],
study on Exclusive Agreements[12],
Economic Indicators and Case Studies on PSI pricing models[13], study on pricing models for
PSI (Deloitte, not yet published), study on the market value of PSI (Vickery,
not yet published), study on the re-use of cultural material[14].
The studies measured the re-use of PSI in
the Member States, estimated the overall market size for PSI in the Union (in
2006 and 2010-2011), assessed the existence of possible exclusive agreements
concluded by public sector bodies under Article 11 of the Directive, provided
insight into current PSI developments in Member States, recommended economic
indicators to measure PSI re-use, assessed different models of supply and
charging for PSI, and provided an overview of the re-use of PSI in the cultural
sector. The results of these studies have provided valuable economic data to
determine the most appropriate options for revision of the PSI Directive.
In addition, the Commission has obtained
important legal analysis from research undertaken within the LAPSI[15] (Legal Aspects of Public
Sector Information) thematic network, which looked into the legal implications
of specific issues involving the re-use of PSI such as exceptions to a default
rule for charging marginal costs, the concept of ‘public task’ and
non-discrimination, whether or not public undertakings should be covered by the
PSI Directive, and licensing conditions.
Finally, further data have been gathered
through networking, cooperation, coordination and awareness-raising activities
with Member States and stakeholders. The ePSIplatform provides wide-ranging PSI
data from across the Union[16].

2.1.3.          
Impact assessment

The impact assessment examined 5 options to
deal with the identified problems, i.e. insufficient clarity and transparency
of PSI re-use rules, locked information resources, excessive charges, lack of a
level playing field, insufficient enforcement of re-use provisions, and
inconsistent approaches adopted by individual Member States. Apart from
repealing the Directive, the options broadly fall into two categories, i.e.
options involving maintaining the current provisions and options involving
changes ranging from simple technical ‘tweaks’ to substantial amendment of the
provisions.
Option 1: No
policy change: no changes to the Directive (baseline)
For the re-use of public sector
information, this option of ‘no policy change’ would mean that the current
provisions of the Directive and the national transposing instruments remain
applicable.
Option 2: Discontinuing existing Union action: repeal of the
PSI Directive
The PSI Directive has set the basic
conditions for PSI re-use throughout the Union and has led to a change in policies
and legislation in the Member States. Without the Directive, Member States
would be free to repeal or amend national implementing legislation for PSI
re-use. This would effectively result in the removal of all the regulatory
obligations currently contained in the Directive and in the transposing
instruments.
Option 3: Soft
law measures
These instruments, e.g. Commission
guidelines or recommendations, provide additional information and/or
interpretation of some of the provisions of the PSI Directive. Soft law
measures would include e.g. recommended licensing provisions, guidance on
technical formats, or guidance on price calculations (including for calculating
marginal costs).
Option 4:
Legislative amendments
This option consists of amending the substance
of the Directive, i.e. the rights and obligations established by its
provisions. This includes: i) extension of the scope of the Directive to
currently excluded sectors (cultural, educational and research establishments
as well as public service broadcasters); ii) establishing a rule for charging
based on marginal costs, possibly with exceptions; iii) amending the general
principle to make accessible documents re-usable; iv) imposing a requirement to
publish data in machine-readable formats; v) imposing a requirement to appoint
an independent regulator and to provide for an effective and efficient redress
mechanism; vi) reversing the burden of proof of compliance with charging
requirements; vii) imposing a requirement to define the scope of ‘public task’
by legislative means only.
Option 5:
Packaged solution
This option would combine substantive
changes to the re-use framework (Option 4) with additional guidance on the
principles to be applied by national authorities when they implement it at
national level (Option 3).
Result of the impact assessment
In the impact assessment, the capacity of
PSI-based products and services to bring economic and social benefits to all
consumers was weighed against the economic and social costs resulting from
potential losses in revenue incurred by releasing public data for re-use at no
or low cost. Particular attention was paid to the fact that any policy in this
area must ensure that there is level playing field between hybrid public bodies
engaging in commercial re-use of the data they produce or collect with public
funds and their private competitors and that a disproportionate burden is not
imposed on the public sector, thereby endangering PSI production, investment
and innovation.
According to
the assessment, no changes to the current legal framework (option 1) will
increase the likelihood of divergent approaches at national level, giving rise
to regulatory uncertainty and distorting competitive conditions in the internal
market.
Repealing the Directive (option 2) would remove
the safety net provided at Union level by the minimum PSI re-use rules. Leaving
Member States free to act in an area previously subject to harmonised Union
rules would give rise to increased legal uncertainty and divergence of national
approaches, to the detriment of competition and the internal market for the
re-use of PSI. Repealing the Directive would also be totally inconsistent with
related data accessibility and re-usability initiatives pursued at Union and
national level.
Adopting soft
law measures only (option 3) will facilitate application of the rules of the
PSI Directive on licensing and charging, but will nonetheless increase the
likelihood of divergent approaches at national levels, giving rise to
regulatory uncertainty and distorting competitive conditions in the internal
market.
Amending the current provisions of the
Directive (option 4) will help establish a more re-use friendly regulatory
framework: this will broaden the scope of application of the Directive by
including cultural material, create an enforceable Union right to re-use PSI,
bring down prices for the re-use of PSI, enhance the effectiveness of the
redress mechanism for enforcement of the right to re-use, and bring about a
more level playing field with public bodies competing with private re-users.
However, this option carries a risk of divergences — and legal uncertainty — in
the application of individual provisions, in particular on cost calculation and
licensing conditions.
Combining legislative amendments with soft
law measures (option 5) combines the benefits of option 3 and 4. This will
hence ensure the convergence of national re-use friendly regulatory approaches
throughout the internal market, thereby enhancing legal certainty, increasing
incentives and lowering barriers to PSI re-use. The analysis undertaken in the
impact assessment indicates that this option offers the best balance between
promotion of the re-use of PSI, harmonisation and legal certainty in the light
of national circumstances.

3.                      
LEGAL ELEMENTS OF THE PROPOSAL
3.1.                
Legal basis

The PSI Directive was adopted on the basis
of Article 114 TFEU (95 TEC), as its subject matter concerned the proper
functioning of the internal market and the free circulation of services. Any
amendments to the Directive must therefore have the same legal basis.

3.2.                
Subsidiarity and proportionality

The PSI Directive was adopted on the basis
of Article 114 TFEU (formerly Article 95 TEC). The overall aim of this revision
is to eliminate persisting and emerging differences between Member States in
the exploitation of public sector information, which hamper realisation of the
full economic potential of this resource. Specific aims are to facilitate the
creation of Union-wide products and services based on PSI, to ensure the
effective cross-border use of PSI for value-added products and services, to
limit distortions of competition on the Union market, and to prevent the
deepening of disparities among Member States in dealing with re-use of PSI.
The
content of the proposal corresponds to those aims.
The economic
importance of open data, in particular government data, as a basis for new
information services and products is now more widely recognised than in 2002,
when the Commission made its proposal for a Directive. While the basic
framework rules for the re-use of public sector information have been
harmonised at Union level, several issues remain and others have emerged.
As a result, the existing legal framework
is considered by stakeholders to be no longer sufficiently capable of ensuring
conditions that can maximise the potential benefits of public data resources in
Europe. With the development of PSI-based activities, some of the current
substantive rules hamper the development of activities based on the re-use of
PSI and lead to a fragmented internal market.
The current charging regime, based on cost
recovery as allowed by the rules of the Directive, is considered inadequate for
incentivising activities based on the re-use of public data. Only harmonisation
at Union level can ensure that the default charging rule and exceptions are
consistent across the Union in order to stimulate re-use activities.
Moreover,
in some Member States public bodies have discretion as to whether to permit
re-use[17].
As a result, ‘there is an obvious lack of harmonisation amongst the Member
States regarding re-use of public data, which may also apply to (public)
traffic data’[18].
Action at Union level is necessary to guarantee e.g. that re-use is allowed for
valuable core public sector data across Member States and that individual
commercially active public bodies do not hamper the development of innovative
products and services.
Also,
difficulties in obtaining effective redress in several Member States when PSI
re-use rules are infringed deter re-users from engaging in ambitious re-use
projects across the Union.
Further
harmonisation of the basic principle, the charging regime, the scope and
enforcement mechanisms in order to alleviate fragmentation of the internal
market and to stimulate cross-border PSI-based products and services cannot be
achieved at Member State level alone.
As
regards scope, the object of the revision is not to regulate, directly or
indirectly, the right of access to public documents, which remains the sole and
exclusive competence of Member States. The revised provisions would apply to
the re-use of documents where these are generally accessible, including under
national access rules.
Also,
the object of the revision is not to regulate the processing of personal data
by public sector bodies or the status of intellectual property rights, which
are not affected beyond what is already the case under the existing rules of
the Directive.
Without targeted action
at Union level, regulatory activities at national level, which have already
been initiated in a number of Member States, might exacerbate the significant
differences that already exist. Such existing national provisions will in the
absence of further harmonisation disturb the functioning of the internal
market. Conversely, Union action is restricted to the elimination or prevention
of the identified obstacles.2011/0430 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
Amending Directive 2003/98/EC on re-use of
public sector information 

(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 114 thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[19],
Having regard to the opinion of the
Committee of the Regions[20],

Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)              
Directive 2003/98/EC of the European Parliament
and of the Council of 17 November 2003 on the re-use of public sector
information[21]
establishes a minimum set of rules governing the re-use and the practical means
of facilitating re-use of existing documents held by public sector bodies of
the Member States.
(2)              
Open data policies which encourage the wide
availability and re-use of public sector information for private or commercial
purposes, with minimal or no legal, technical or financial constraints, can
play an important role in kick-starting the development of new services based
on novel ways to combine and make use of such information. However, this
requires a level playing field at Union level in terms of whether or not the
re-use of documents is authorised, which cannot be achieved by leaving it up to
the different rules and practices of the Member States or the public bodies
concerned.
(3)              
Allowing re-use of documents held by a public
sector body adds value for the re-users, for the end users and for the society
in general and in many cases for the public body itself, by providing feedback
from re-users and end users which allows the holder to improve the quality of
the information collected.
(4)              
Since the first set of rules on re-use of public
sector information was adopted in 2003, the amount of data in the world,
including public data, has exploded and new types of data are being generated
and collected. In parallel, we are witnessing continuous revolution in
technologies for analysis, exploitation and processing of data. This rapid
technological evolution makes it possible to create new services and new
applications, which are built upon the use, aggregation or combination of data.
The rules adopted in 2003 no longer keep pace with these rapid changes and as a
result the economic and social opportunities offered by re-use of public data
risk to be missed. 
(5)              
At the same time, Member states have now
established re-use policies under the 2003/98/EC Directive and some of them
have been adopting ambitious open data approaches to make re-use of accessible
public data easier for citizens and businesses beyond the minimum level set up
by the Directive. To prevent different rules in different Member States acting
as a barrier for the cross-border offer of products and services, and to enable
comparable public data sets to be re-usable for pan-European applications based
on them, a minimum harmonisation is also required as to what public data is
available for re-use in the internal information market, consistent with the
relevant access regime.
(6)              
Directive 2003/98/EC does not contain an
obligation to allow re-use of documents. The decision whether or not to
authorise re-use remains with the Member Sates or the public sector body
concerned. At the same time, the Directive builds on national rules on access
to documents. Some Member States have expressly linked the right of re-use to
this right of access, so that all generally accessible documents are re-usable.
In other Member States, the link between the two sets of rules is less clear and
this is a source of legal uncertainty. 
(7)              
Directive 2003/98/EC should therefore lay down a
clear obligation for Member States to make all generally available documents
re-usable. As it constitutes a limitation to the intellectual property rights
hold by the authors of the documents, the scope of such a link between the
right of access and the right of use should be narrowed to what is strictly
necessary to reach the objectives pursued by its introduction. In this respect,
taking into account the Union legislation and Member States' and Union's
international obligations, notably under the Berne Convention for the
Protection of Literary and Artistic Works and the Agreement on Trade-Related
Aspects of Intellectual Property Rights (the TRIPS Agreement), documents on
which third parties hold intellectual property rights should be excluded from
the scope of Directive 2003/98/EC. If a third party was
the initial owner of a document held by libraries
(including university libraries), museums and archives that is still
protected by intellectual property rights, that document should, for the
purpose of this Directive, be considered as a document for which third parties
hold intellectual property rights. 
(8)              
The application of Directive 2003/98/EC should
be without prejudice to the rights that employees of public sector bodies may
enjoy under national rules. 
(9)              
Moreover, where any
document is made available for re-use, the public sector body concerned should
retain the right to exploit the document.
(10)          
The scope of application of the Directive is
extended to libraries (including university libraries), museums and archives.
The Directive does not apply to other cultural institutions, such as operas,
ballets or theatres, including the archives that are part of these
institutions. 
(11)          
To facilitate re-use, public sector bodies
should make documents available through machine
readable formats and together with their metadata 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 Directive 2007/2/EC of the European Parliament and of
the Council of 14 March 2007 establishing an Infrastructure for Spatial
Information in the European Community (INSPIRE)[22]
(12)          
Where charges are made for the re-use of
documents, they should in principle be limited to the marginal costs incurred
for their reproduction and dissemination, unless exceptionally justified
according to objective, transparent and verifiable criteria. The necessity of
not hindering the normal running of public sector bodies covering a substantial
part of the operating cost relating to the performance of their public task
from the exploitation of their intellectual property rights should notably be
taken into consideration. The burden of proving that charges are cost-oriented
and comply with relevant limits should lie with the public sector body charging
for the re-use of documents.
(13)          
In relation to any re-use that is made of the document,
public sector bodies may, where practicable, impose conditions on the re-user,
such as acknowledgment of source. Any licences for the
re-use of public sector information should in any case place as few
restrictions on re-use as possible. Open licences available online, which grant
wider re-use rights without technological, financial or geographical
limitations and relying on open data formats, may also play an important role
in this respect. Therefore, Member States should encourage the use of open government
licences.
(14)          
Proper implementation of some of the features of
this Directive, such as means of redress, compliance with charging principles
and reporting obligations require supervision by independent authorities
competent on the re-use of public sector information. To ensure consistency
between approaches at Union level, coordination between the independent
authorities should be encouraged, particularly through exchange of information
on best practices and data re-use policies.
(15)          
Since the objective of this Directive, namely to
facilitate the creation of Union-wide information products and services based
on public sector documents, to ensure the effective cross-border use of public
sector documents by private companies for added-value information products and
services, and to limit distortions of competition on the Union market, cannot
be sufficiently achieved by Member States and can therefore, in view of the
intrinsic pan-European scope of the proposed action, be better achieved at
Union level, the Union may adopt measures in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on the Functioning of the
European Union. In accordance with the principles of proportionality, as set
out in that Article, this Directive does not go beyond what is necessary in
order to achieve those objectives.
(16)          
This Directive respects
the fundamental rights and observes the principles recognised in particular by
the Charter of Fundamental Rights of the European Union, including the right to
property (Article 17). Nothing in this Directive should be interpreted or
implemented in a manner that is inconsistent with the European Convention on Human Rights.
(17)          
It is necessary to ensure that the Member States
(see recital 19) report to the Commission on the extent of the re-use of public
sector information, the conditions under which it is made available, and the
work of the independent authority. To ensure consistency between approaches at
Union level, coordination between the independent authorities should be
encouraged, particularly through exchange of information on best practices and
data re-use policies.
(18)          
The Commission should assist the Member States
in implementing the Directive in a consistent way by giving guidance,
particularly on charging and calculation of costs, on recommended licensing
conditions and on formats, after consulting interested parties.
(19)          
In accordance with the Joint Political
Declaration of Member States and the Commission on explanatory documents of [date],
Member States have undertaken to accompany, in justified cases, the
notification of their transposition measures with one or more documents
explaining the relationship between the components of a directive and the
corresponding parts of national transposition instruments. With regard to this
Directive, the legislator considers the transmission of such documents to be
justified.
(20)          
Directive 2003/98/EC should therefore be amended
accordingly,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Amendments to Directive 2003/98/EC
Directive 2003/98/EC is amended as follows:
1.                      
Amendments to Article 1: (Subject matter and
scope):
(1)         
In paragraph 2, point (a) is replaced by the
following:
‘(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 in question;’
(2)         
In paragraph 2, point (e) is replaced by the
following:
‘(e) documents held by educational and
research establishments, such as research facilities, including, where relevant,
organisations established for the transfer of research results, schools and
universities (except university libraries in respect of
documents other than research documents protected by third party intellectual
property rights) and ;’
(3)         
In paragraph 2, point (f) is replaced by the
following:
‘(f) documents held by cultural establishments,
other than libraries, museums and archives;’
(4)         
In paragraph 4, ‘Community’ is replaced by
‘Union’.
(5)         
At the end of paragraph 5, the following
sentence is added:
‘The provisions of this Directive are without
prejudice to the economic or moral rights that employees of public sector
bodies may enjoy under national rules.’
2.                      
In Article 2 (Definitions) the following
paragraph is added:
‘6. 'machine-readable' means that digital documents
are sufficiently structured for software applications to identify reliably
individual statements of fact and their internal structure.’
3.                      
Article 3 is replaced by the following:
‘Article
3
General
principle
(1)         
Subject to paragraph (2) Member States shall
ensure that documents referred to in Article 1 shall be re-usable for
commercial or non-commercial purposes in accordance with the conditions set out
in Chapters III and IV.
(2)         
For documents for which libraries (including
university libraries), museums and archives have intellectual property rights,
Member States shall ensure that, where the re-use of documents is allowed,
these documents shall be re-usable for commercial or non-commercial purposes in
accordance with the conditions set out in Chapters III and IV.
4.                      
Amendments to Article 4 (Requirements applicable
to the processing of requests for re-use):
(1)         
At the
end of paragraph 3, the following sentence is added:
‘However, libraries (including university libraries), museums and archives shall not be required to include such a reference.’
(2)         
At the end of paragraph 4, the following wording
is added:
‘The means of redress shall include the
possibility of review by an independent authority that is vested with specific
regulatory powers regarding the re-use of public sector information and whose
decisions are binding upon the public sector body concerned.’
5.                      
Amendments to Article 5 (Available formats):
(1)         
In paragraph 1, the words ‘through electronic
means’ are replaced by ‘in machine-readable format and
together with their metadata.’.
6.                      
Amendments to Article 6 (Charges):
(1)         
The following paragraphs are inserted at the
beginning of the Article: 
‘1. Where charges are made for the re-use
of documents, the total amount charged by public sector bodies shall be limited
to the marginal costs incurred for their reproduction and dissemination.’
‘2. In exceptional cases, in particular
where public sector bodies generate a substantial part of their operating costs
relating to the performance of their public service tasks from the exploitation
of their intellectual property rights, public sector bodies may be allowed to
charge for the re-use of documents over and above the marginal costs, according
to objective, transparent and verifiable criteria, provided this is in the
public interest and subject to the approval of the independent authority
referred to in Article 4(4), and without prejudice to paragraphs 3 and 4 of
this Article.’
‘3. Notwithstanding paragraphs 1 and 2,
libraries (including university libraries), museums and archives may charge
over and above the marginal costs for the re-use of documents they hold.’
(2)         
The existing text of Article 6 becomes paragraph
4.
(3)         
A new paragraph 5 is added:
‘The burden of proving that charges comply
with this Article shall lie with the public sector body charging for re-use.’
7.                      
In Article 7 (Transparency), the words ‘over and
above the marginal costs or’ are inserted after ‘calculation of charges’.
8.                      
Amendments to Article 8:
(1)         
Paragraph 1 is replaced by the following:
‘Public sector bodies may allow re-use without
conditions or may impose conditions, such as indication of source, where
appropriate through a licence. These conditions shall not unnecessarily
restrict possibilities for re-use and shall not be used to restrict
competition.’
9.                      
Article 9 is replaced by the following:
‘Article
9
Practical
arrangements
Member States shall ensure that practical
arrangements facilitating the cross- lingual search for documents available for
re-use are in place, such as asset lists of main documents with relevant metadata, accessible
preferably online and in machine-readable format, and portal sites that are
linked to decentralised asset lists.’
10.                  
In Article 11 (Prohibition of exclusive
arrangements), the following sentence is added at the end of paragraph 3:
‘However, such arrangements involving
cultural establishments and university libraries shall be terminated at the end
of the contract or in any case not later than 31 December 20XX [6 years after
entry into force of the Directive].’
11.                  
Article 12 (Transposition) is replaced by the
following:
‘Article
12
Member States shall communicate to the
Commission the text of the main provisions of national law which they adopt in
the field covered by this Directive.’
12.                  
In Article 13 (Review) the date of 1 July 2008
is replaced by [3 years after the transposition date] and the following
paragraph is added:
‘Member States shall submit a yearly
report to the Commission on the extent of the re-use of public sector
information, the conditions under which it is made available and the work of
the independent authority referred to in article 4(4).’
Article 2
(1)                   
Member States shall adopt and publish, by 18 months
at the latest, the laws, regulations and administrative provisions necessary to
comply with this Directive. They shall forthwith communicate to the Commission
the text of those provisions and a correlation table between those provisions
and this Directive.
(2)                   
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 3
This Directive shall enter into force on
the day following that of its publication in the Official Journal of the
European Union.
Article 4
This Directive
is addressed to the Member States in accordance with the Treaties.
Done at Brussels,
For the European Parliament                       For
the Council
The President                                                 The
President
[1]               http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0212:FIN:EN:PDF.
[2]               http://www.economist.com/node/15557443.
[3]               http://webarchive.nationalarchives.gov.uk/+/interactive.bis.gov.uk/digitalbritain/report/,
p. 214.
[4]               Review of recent studies on PSI re-use and related
market developments, G. Vickery, August 2011.
[5]               http://ec.europa.eu/information_society/digital-agenda/index_en.htm.
[6]               WHITE PAPER Roadmap to a Single European Transport
Area — Towards a competitive and resource efficient transport system. COM(2011) 144 final (28.3.2011).
[7]               COM(2008) 886 final/2 — Corrigendum of 20.3.2009.
[8]               OJ L207/1, 6.8.2010.
[9]               http://www.epsiplatform.eu/.
[10]             http://ec.europa.eu/information_society/policy/psi/index_en.htm.
[11]             http://ec.europa.eu/information_society/policy/psi/actions_eu/policy_actions/mepsir/index_en.htm.
[12]             http://ec.europa.eu/information_society/policy/psi/facilitating_reuse/exlusive_agreements/               
index_en.htm.
[13]             http://ec.europa.eu/information_society/policy/psi/docs/pdfs/economic_study_report_final.pdf.
[14]             http://tinyurl.com/culturePSI.
[15]             http://www.lapsi-project.eu/.
[16]             http://www.epsiplatform.eu/.
[17]             UK Re-use of Public Sector Information Regulations
2005, ‘A public sector body may permit re-use’ (regulation 7(1)).
[18]             Study on guaranteed access to traffic and travel data
and free provision of universal traffic information, Lyon, 11 October 2010.
[19]             OJ C , , p. .
[20]             OJ C , , p. .
[21]             OJ L 345, 31.12.2003, p. 90.
[22]             OJ L 108, 25.4.2007, p. 1.