6. RE-USE AND COMMERCIAL EXPLOITATION
OF PUBLIC SECTOR DOCUMENTS
(23697)
11093/02
COM(02) 207
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Draft Directive on the re-use and commercial exploitation of public sector documents.
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| Legal base: | Article 95 EC; co-decision; qualified majority voting
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| Department: | Cabinet Office and Department of Trade and Industry
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| Basis of consideration: |
Minister's letter of 20 November 2002 |
Previous Committee Report:
| HC 152-xl (2001-02), paragraph 2 (30 October 2002)
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| To be discussed in Council:
| Telecommunications Council 5 December 2002
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | Cleared
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Background
6.1 We considered this proposed framework Directive to
establish conditions for the commercial re-use of generally accessible
public sector information on 30 October.
6.2 We noted that the Directive was to apply only in
so far as it was 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.
6.3 We also noted that the definition of 'generally accessible
document' included any document used by public sector bodies 'as
an input for information products or services which they commercialise',
and therefore appeared to include source data derived from mapping,
geological or hydrographic surveys carried out by public sector
bodies. We were concerned that the proposed regime for charging[13]
might have the effect that such data, produced at public expense,
would have to be made available to the private sector without
passing on the cost of obtaining that data.
6.4 We agreed with the Ministers that the proposal should
make it clear that the policy on access to government and public
sector documents remained a matter for the Member States, and
we asked the Ministers to identify the clarifications they would
be seeking in respect of the provisions on charging, and if they
would seek more precise definitions of the terms 'cost' and 'reasonable
return on investment' as they were used in Article 6.
The Ministers' reply
6.5 In their letter of 20 November 2002, the Minister
for E-commerce and Competitiveness at the Department of Trade
and Industry (Mr Stephen Timms) and the Minister of State at the
Cabinet Office (Mr Douglas Alexander) address our concerns.
6.6 On the question of the policy on access to government
and public sector documents, the Ministers explain that a new
Article 1.2a will provide that the Directive does not change the
existing rules on access to documents held by government and public
sector bodies, and that the Directive will not apply in those
cases where a person has to prove he has a particular interest
in order to gain access to particular documents. The Directive
will also contain a further exclusion for documents to which access
may not be gained under the existing access regimes of Member
States. The Ministers consider that their concerns (which we shared)
over the possibility of inadvertent encroachment on access regimes
have now been fully addressed by these changes.
6.7 On the question of charging, the Ministers point
to a number of amendments made to Article 6. They explain that
this Article has been amended to make clear that the requirement
that charges should be 'cost-oriented' is to apply over the body's
normal accounting period, rather than to each transaction. The
provision placing the burden of proof on the public body to show
that charges were cost-oriented has also been removed. The Ministers
also explain that the definition of 'cost-oriented' in Article
6 has been expanded so as to include the costs of creation and
collection of the data contained in the document.
6.8 In relation to our concern that the Directive might
have the effect of requiring source data to be made available
to the private sector without passing on the cost of obtaining
the data, the Ministers reply that they do not agree that such
source data should be made available in this way. The Ministers
state that equality of treatment, favouring neither public nor
private sector and allowing both to compete on even terms, is
an important aspect of the Directive. Source data is to be made
available under the same conditions for the private sector user
as apply to the public sector bodies that produced the material.
6.9 The Ministers add that making it possible for public
sector bodies to include a reasonable return on investment is
an important consideration for the UK, and in particular for such
bodies as the Ordnance Survey and the Met Office. The Ministers
report that the precise definition and level of 'reasonable return
on investment' have been deliberately left in general terms for
the discretion of Member States to interpret and that this will
vary according to the circumstances. They point out that the availability
of source material on the same terms and conditions will encourage
competition, ensuring that charges are not excessive.
Conclusion
6.10 We thank the Ministers for their helpful response
to the issues we raised. We agree with their view that source
data obtained from mapping, geological and hydrographic surveys
should not have to be made available to the private sector without
the possibility of passing on the costs of obtaining such data,
and we note the amendments which have been made to make this principle
clear.
6.11 We also note that the concept of 'reasonable
return on investment' has been deliberately left in general terms,
to be interpreted by Member States in the light of the particular
circumstances. We believe this to be the right approach.
6.12 We have no further questions to raise with the
Ministers and we clear the document.
13 Article
6 provided 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'. Back
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