Select Committee on European Scrutiny Fortieth Report


COM(02) 207

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 sector information.

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[1]. 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'[2]. '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[3] of producing, reproducing and disseminating them together with a reasonable return on investment[4]'. The Article further provides that the burden of proving that charges are 'cost-oriented' is to lie with the public sector body imposing the charge.

  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 beforehand.

  2.8  Article 10(1) requires public sector bodies not to grant exclusive rights that 'constitute an unjustified restriction of competition[5] 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[6], 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.

1  Presumably, this is meant also to include any artistic or graphic work, including photographs. Back

2  This 'input' appears to include source data derived from mapping, geological or hydrographic surveys carried out by public sector bodies.  Back

3  It is not made clear if this is to be the total cost, including an allowance for overheads, or the marginal cost. Back

4  The terms 'reasonable return' and 'investment' are not defined. Back

5  It 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

6  An 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

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