2. RE-USE AND COMMERCIAL EXPLOITATION
OF PUBLIC SECTOR DOCUMENTS
Draft Directive on the re-use and commercial exploitation of public sector documents.
|Legal base:||Article 95 EC; co-decision; qualified majority voting
|Document originated:||5 June 2002
|Deposited in Parliament:
||26 July 2002|
|Department:||Cabinet Office and Department of Trade and Industry
|Basis of consideration:
||EM of 4 September 2002|
|Previous Committee Report:
||None; but see HC152- xiv (2001-02), paragraph 12 (23 January 2002)
|To be discussed in Council:
||No date set|
|Committee's assessment:||Legally and politically important
|Committee's decision:||Not cleared; further information requested
2.1 Action to promote the exploitation of public sector
information is a theme included in the eEurope 2002 Action Plan
to follow up the conclusions of the Lisbon European Council in
relation to the knowledge-based economy. We considered on 23 January
2002 a Commission communication on creating an EU Framework for
the exploitation of public sector information. The communication
envisaged the adoption of a framework Directive to establish clear
and consistent conditions for the commercial re-use of public
The draft Directive
2.2 The proposed draft Directive is concerned with the
conditions for commercial re-use of documents which are 'generally
accessible' (Article1) and is not primarily concerned with regulating
access to information.
2.3 The scope of the proposal is defined in Article 1.
Although the Directive is to apply to existing documents held
by public sector bodies which are generally accessible, a number
of important exceptions are set out in Article1(2). Accordingly,
the Directive does not apply to documents the supply of which
is 'an activity falling outside the scope of the public task'
of the public sector body concerned. Documents or parts of documents
for which third parties hold intellectual property rights are
also excluded, as are documents containing personal data unless
re-use of such data is legally permissible. Documents held by
public service broadcasters for the 'fulfilment of a public sector
broadcasting remit' are excluded, and there are exclusions for
documents held by educational, research and cultural establishments.
Article 1(3) provides that the Directive is to apply only in so
far as it is compatible with international agreements for the
protection of intellectual property, notably the Berne Convention
for the Protection of Literary and Artistic Works and the Agreement
on Trade-Related Aspects of Intellectual Property Rights.
2.4 Article 2 defines the terms 'public sector body',
'body governed by public law', 'document', 'generally accessible
document', 're-use' and 'personal data'. 'Document' is defined
as any content, whether reduced to writing or stored electronically
and any sound visual or audiovisual recording.
A 'generally accessible document' is any document to which a right
of access is granted under the rules applicable in the Member
States, as well as any document used by public sector bodies 'as
an input for information products or services which they commercialise'.
'Re-use' is defined as use for commercial and non-commercial purposes.
2.5 Article 4 requires public sector bodies to make documents
available in any pre-existing format or language, but does not
require such a body to create or adapt a document in order to
comply with a request. Moreover, a public sector body is not required
to continue the production of documents of any certain type for
their re-use by a private sector organisation. Article 5 prescribes
a procedure for dealing with requests and requires the public
sector body to state grounds for any refusal.
2.6 Article 6 provides that, where any charge is made,
'the total income from allowing access to or the re-use of these
documents shall not exceed the cost
of producing, reproducing and disseminating them together with
a reasonable return on investment'.
The Article further provides that the burden of proving that charges
are 'cost-oriented' is to lie with the public sector body imposing
2.7 Article 7 provides that conditions for commercial
re-use are to be non-discriminatory, and Article 8 requires that
charges should, as far as possible, be established and published
2.8 Article 10(1) requires public sector bodies not to
grant exclusive rights that 'constitute an unjustified restriction
of competition or the
re-use of the information'. Article 10(2) provides, in cases where
an exclusive licence is deemed necessary for reasons such as provision
of a service in the public interest, that the validity of such
reasons is to be reviewed every three years, and that the exclusive
arrangements should be open for public inspection.
2.9 Articles 11 to 14 are concerned with implementation,
review and entry into force.
The Government's view
2.10 In their Explanatory Memorandum of 4 September 2002,
the Minister of State at the Cabinet Office (Mr Douglas Alexander)
and the Minister of State for eCommerce and Competitiveness at
the Department of Trade and Industry (Mr Stephen Timms) observe
that public sector documents within the scope of the proposed
Directive represent a considerable resource for exploitation by
the private sector but that the Government will need to ensure
that the proposed Directive is explicit in leaving policy on access
to public sector documents in the hands of Member States.
2.11 The Ministers point to the effects on non-Crown
copyright works, on the operation of trading funds, charging and
third party rights as the key policy implications for the UK.
On non-Crown copyright works, the Ministers point out that the
UK has made significant progress in recent years on the re-use
of documents produced by central government, but that it will
be necessary to extend the obligation on the re-use of documents
to public sector bodies which are outside central government but
which fall within the scope of the proposed Directive. The Ministers
also state that it will be important to ensure that the proposed
exceptions applying to documents produced by public service broadcasters
and educational, research and cultural establishments are retained
in the proposed directive and are sufficiently comprehensive.
The Ministers point out that these bodies generally own the copyright
in the documents they produce, that the UK's international treaty
obligations in this field mean that there are constraints on compelling
them to license the re-use of their documents by others and that
such bodies are often reliant on being able to exploit the ownership
of their documents in such manner as they consider appropriate
in order to generate income and meet funding needs.
2.12 The Ministers observe that trading funds,
such as the Ordnance Survey, the UK Hydrographic Office and the
Met Office are required to achieve a reasonable return on investment
from the licensing and sale of documents. The Ministers express
real concerns that if their ability to produce, collect, collate
and add value to documents is removed, the quality and value of
the information resource could become seriously compromised. They
observe that, while the proposal includes trading funds within
its scope, it allows public sector bodies to develop and sell
value added products at cost plus a reasonable return on investment,
and that it is important that such latitude is maintained.
1.13 In relation to charging, the Ministers point out
that, whilst the use of a wide range of Crown copyright documents
is licensed on a marginal cost basis, the opportunity to trade
at a reasonable profit is an important one for the UK, both for
trading funds and in the interests of fair competition in those
areas where the private sector produces similar products and services.
The Ministers consider that clarification is needed on the way
the provisions on charging will apply and that this is 'a crucial
issue for the more commercial parts of the public sector'.
2.13 We agree with the Ministers that the proposal
should make it clear that the policy on access to government and
public sector documents remains a matter for the Member States.
We look forward to an account of how this has been achieved in
the revised version of the proposal.
2.14 We also agree with the Ministers that the provisions
on charging are of crucial importance, particularly to those parts
of the public sector which are funded from receipts from the sale
of goods and services which they supply.
2.15 In this context, we ask the Ministers if they
agree that source data, such as mapping, geological or hydrographic
survey data produced at public expense, should be within the scope
of the proposal and made available to the private sector without
passing on the cost of obtaining that data. We also ask the Ministers
to identify the clarifications they will seek in respect of the
provisions on charging, and if they will seek more precise definitions
of the terms 'cost' and 'reasonable return on investment' as they
are used in Article 6.
2.16 We shall hold the document under scrutiny pending
the Ministers' reply.
this is meant also to include any artistic or graphic work, including
'input' appears to include source data derived from mapping, geological
or hydrographic surveys carried out by public sector bodies. Back
is not made clear if this is to be the total cost, including an
allowance for overheads, or the marginal cost. Back
terms 'reasonable return' and 'investment' are not defined. Back
is not clear what is meant by 'unjustified' in this context, or
if the concept attracts the case-law applying to the operation
of Article 81(3) EC. Back
accounting arrangement approved by order made under the Government
Trading Funds Act 1973 (as amended) by which the operations of
a Government department are funded by receipts from sales of goods
and services, rather than monies voted by Parliament. Back