5 Open data - re-use of public sector
information
| (33544)
18555/11
COM(11) 877
+ ADDs 1-2
| Draft Directive amending Directive 2003/98/EC on re-use of public sector information
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| Legal base | Article 114 TFEU; co-decision; QMV
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| Departments | Cabinet Office and Justice
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| Basis of consideration | Minister's letter of 10 July 2012
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| Previous Committee Report | HC 428-lii (2010-12), chapter 7 (29 February 2012)
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| Discussion in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared
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BACKGROUND
5.1 The central aim of the EU 2020 strategy is to promote
growth in Europe's economies. One of the key resources is public
data that public bodies in the European Union produce, collect
or pay for. The Commission believes the adoption of open data
principles and the removal of barriers to re-use can generate
economic benefits that are estimated to be in the order of £33
billion (€40 billion) a year. Re-use of public sector information
(PSI) means using it in new and innovative ways by adding value
to it, combining it with information from different sources, making
'mash-ups' and new applications, both for commercial and non-commercial
purposes. In addition, the Commission believes opening up of
public data leads to greater transparency in public administration
and promotes social and political engagement. The Commission
envisages that increasing the availability of EU-wide public data
will also lead to better evidence-based policy making across the
public sector resulting in more efficient public services.
THE PROPOSED
DIRECTIVE
5.2 The Re-use Directive was adopted on 17 November 2003.
Article 13 of the Re-use Directive called for a review of the
application of the Re-use Directive before 1 July 2008. This
review was carried out by the Commission.[29]
The Commission concluded that, despite the progress made, a number
of barriers remained, and that a further review should be carried
out by 2012 when more evidence of the impact, effects and application
of the Re-use Directive would be available. The Commission undertook
this review throughout 2011 and concluded that the following problems
remained: insufficient clarity and transparency of PSI re-use
rules, restrictive licensing conditions, lack of information on
available data, lack of a robust complaints procedure, locked
information resources, excessive charging and lack of a level
playing field, unfair competition practices, insufficient enforcement
and inconsistent approaches adopted by individual Member States.
5.3 The Re-use Directive established a minimum set of legal
rules governing the re-use of PSI at the European level. In particular,
it aimed to provide for transparency and consistency in the re-use
of PSI to ensure a level playing field for all re-users of such
information. However, the rules applicable under the Re-use Directive
and as transposed under the Re-use Regulations only apply where
a public sector body permits re-use of information covered by
that legislation. Consequently, many public sector bodies across
the European Union have opted not to make all their PSI available
for re-use. The Commission points, however, to a lack of awareness
across public sector bodies and an inconsistency of approach across
Member States that has hampered the creation of cross border information
products and services. This latest proposal seeks to bring about
a further degree of harmonisation at European level.
5.4 The key features of this proposal are that it:
- changes the general principle of the Re-use Directive so that
Member States would be required to ensure that all PSI that is
generally available to the public, subject to some specified exceptions,
must be available for re-use for commercial and non-commercial
purposes;
- provides that where charges are made for the
re-use of PSI the amount that can be charged should be limited
to the marginal costs of reproduction and dissemination, unless
exceptionally justified by reference to objective, transparent
and verifiable criteria. In such exceptional cases, public sector
bodies would be allowed to charge more than marginal costs, in
particular where public bodies generate a substantial part of
their operating costs from the exploitation of their intellectual
property rights. Where charges are made, total income would as
now not exceed the cost of collection, production, reproduction
and dissemination together with a reasonable return on investment;
- requires public sector bodies to define their
'public task' in law or other binding rules rather than also by
reference to common administrative practice;
- expands the scope of the Re-use Directive to
include libraries, archives, museums and university libraries,
subject to the limitation that those institutions may choose whether
to permit re-use and may charge over and above the marginal costs
for the re-use of documents they hold; and
- requires Member States to provide that re-users
of PSI may seek redress for non-compliance with the Re-use Directive
from an independent authority vested with specific regulatory
powers and whose decisions are binding on public sector bodies.
PREVIOUS
SCRUTINY
5.5 We first reported on the proposal on 29 February
2012,[30] when we asked
the Government to report back to us when the negotiations in the
Council neared completion.
THE
MINISTER'S
LETTER OF
10 JULY 2012
5.6 The Minister of State at the Ministry of
Justice (Lord McNally) wrote as asked to update us on the developments
on this proposal.
5.7 He says the Government agreed a position
at the Transport, Telecommunications and Energy Council (TELECON)
meeting of 7-8 June 2012 with the following conditions:
- the requirement for retained
flexibility for charging levels is articulated clearly during
negotiations. It is right that governments think about the cost
of data and retaining the flexibility to invest in and maintain
high quality public sector information resources;
- an impact assessment is carried out setting out
the costs and benefits of the proposal; and
- the concerns of cultural institutions being brought
into the scope of the Directive are taken into account and the
negotiating position seeks to ensure that no further burdens are
imposed on these bodies.
5.8 The UK is generally recognised by the Commission
and others as being at the forefront of promoting the re-use of
public sector information, the Minister says. The UK already
has many initiatives which support and encourage re-use, including:
- the UK Government Licensing
Framework and Open Government Licence;
- a statutory complaints process in the existing
UK regulation;
- the Information Fair Trader Scheme regulatory
framework;
- an annual report on UK public sector information;
- proactive release of datasets through data.gov.uk;
and
- the existence of well-established charging policies
for re-use.
5.9 The re-use agenda links closely with the
Government's commitments on transparency and open data, including
the Prime Minister's transparency commitments for health, education,
criminal justice, transport and government financial information.
In June 2012, the Cabinet Office published an Open Government
White Paper which describes measures that will enhance access
to public data, build trust in the use and re-use of public data,
and allow smarter use of public data.
AUTOMATIC ASSUMPTION OF RE-USE
5.10 Under the proposal most parts of the public
sector would be required to make information that is generally
accessible available for re-use. The UK supports this approach
because it is consistent with the Government's existing and emerging
policies on open data and transparency. The UK also supports
the Commission's proposal that libraries, museums and archives
should not be subject to the automatic assumption of re-use.
EXTENDING SCOPE OF PSI DIRECTIVE TO CERTAIN CULTURAL
INSTITUTIONS
5.11 The proposal, if adopted, would extend the
scope of the PSI Directive to cover information held by libraries
(including university libraries), museums and archives. The proposal
advocates a more flexible approach for these cultural institutions
in terms of charging, transitional arrangements for existing exclusive
agreements and no automatic assumption of re-use.
5.12 Cultural organisations have stressed the
importance of ensuring sufficient flexibility both to enter into
exclusive agreements and, where appropriate, for transitional
arrangements for existing arrangements. This is particularly
relevant in relation to digitisation projects. This point is
being reflected in the emerging Presidency text.
5.13 The UK believes that flexible solutions
for cultural institutions are necessary for the following reasons:
- digitisation of cultural resources,
often with public private partnerships, would be hampered without
flexibility on charging and exclusive licensing, where the level
of investment, particularly on digitisation projects, is often
substantial; and
- these organisations are not faced with additional
administrative burdens.
CHARGING
5.14 The Commission's proposal would limit the
charges that can be made for the re-use of PSI to the marginal
cost of reproduction and dissemination apart from in exceptional
cases. Those exceptional cases would need to be justified by
reference to objective, transparent and verifiable criteria and
approved by an independent authority. The proposal also exempts
libraries, museums and archives from this limit. It is clear
from the proposal that the exceptional cases may include where
a public sector body generates a substantial part of their operating
costs from licensing data. This would cover UK trading funds
such as Ordnance Survey and the Met Office.
5.15 The UK supports the general principle of
marginal cost charging. However, it is important to maintain
the existing flexibility that allows relevant public sector bodies,
in particular trading funds, to decide charging levels for re-use
and to charge up to full cost together with a reasonable return
on investment where appropriate. This is essential to ensure
that the Government is able to meet its objectives on transparency
and supports those public bodies which rely on income from information
to finance their ability to produce data.
REDRESS
5.16 The proposal introduces the possibility
of complaints to an independent authority with the power to make
binding decisions. The UK supports the possibility of redress
by means of an independent authority in principle. The UK established
a statutory regulator in 2005 which has proved very successful
and it is important that the regulatory solution remains effective,
proportionate and low cost. For this reason, the UK proposes
changes to the terms 'binding decisions' and 'independent authority'.
EUROPEAN COUNCIL: PROGRESS REPORT AND EXCHANGE OF
VIEWS
5.17 At the TELECON meeting of 7-8 June 2012,
the Danish Presidency presented and held an exchange of views
on the progress report for this proposal. The progress report
outlines the progress of discussion on the proposal between Member
States and the Presidency in the Council's Working Party on Telecommunications
and the Information Society.
5.18 In general, Member States welcomed the Commission's
proposal and its aims although several have indicated that the
amending Directive is still being considered internally and have
placed scrutiny reservations on the text. Several Member States
expressed reservations on the broadening of the Directive's scope
to some cultural institutions and the potential administrative
burden that inclusion would bring. An outcome on this matter
may depend on the flexibility of the rules on charging, possibility
of exclusive agreements for cultural institutions and size of
the covered institutions. Some Member States supported the Commission's
proposal that marginal cost should be the general rule for charging,
with appropriate exceptions, although others had concerns that
some public sector bodies would not be able to provide information
if they could not sufficiently cover their costs. Many Member
States believe the proposal should be amended to clarify the limits
and rules for charging above marginal costs. Discussions on other
areas of the text have been productive and progress made on clarifying
the documents available for re-use, available formats, redress
procedure, licences and interoperability.
5.19 During the exchange of views, Member States
were broadly positive towards the proposal, but several expressed
concerns about the cost of making data available at a time when
public budgets were under pressure. The UK supported the proposal
and highlighted the economic benefits of making PSI available,
whilst registering the need to take account of the implications
for public bodies with different funding models, especially those
that derive income from the sale and licensing of data. The Commission
responded that most of the information in question had already
been paid for by the taxpayer; there were opportunities to build
a market whose value could rise from the current €32 billion
to four times that amount.
NEXT STEPS
5.20 The Cypriot Presidency will continue negotiations
on this proposal and it is expected that the European Parliament
will begin its consideration in the autumn.
5.21 The Minister's officials are preparing an
impact assessment which he will send to us.
CONCLUSION
5.22 We thank the Minister for this helpful update.
5.23 We note that the Government supports the
proposal and that it is largely consistent with national policy
on open data and transparency.
5.24 That said, the Government has concerns about
the costs to public bodies, particularly cultural organisations
such as universities, libraries, archives and museums, which the
Commission proposes to be included in the revised proposal, of
making generally accessible information available for re-use —
concerns which appear to be shared by other Member States.
5.25 We agree with the Government that there
should be greater flexibility shown to cultural organisations,
so that they are not overburdened by administrative requirements
arising from the Directive, and so that the current digitisation
of cultural records is not hampered in the future by limiting
how access to these resources is charged.
5.26 We also agree there is a need to clarify
the rules for when public bodies can charge above marginal costs.
5.27 We ask the Minister to report back once
more, towards the end of the first reading negotiations with the
European Parliament, with an update on the negotiations.
5.28 We also look forward to receiving the Government's
impact assessment. In the meantime, the document remains under
scrutiny.
29 See its Communication COM(09) 212. Back
30
See headnote. Back
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