Explanatory Memorandum to COM(2002)207 - Re-use and commercial exploitation of public sector documents - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)207 - Re-use and commercial exploitation of public sector documents. |
|---|---|
| source | COM(2002)207  |
| date | 05-06-2002 |
The potential of public sector information i
The digital, knowledge-based economy is a powerful engine for growth, competitiveness and jobs, while at the same time improving citizens' quality of life. This is a central message of the eEurope 2002 Action Plan 'An Information Society for All' (COM(2000) 330 final). The present initiative concerning the re-use of public sector information is part of the Action Plan and will contribute to its goals in particular in the areas of eGovernment and digital content.
Within the exercise of its public tasks, the public sector collects, processes and disseminates huge quantities of information. Financial and business information is collected by Ministries and other public sector organisations. Legal information and administrative information are public sector information par excellence. Geographical information, traffic information and tourist information is also collected by public sector bodies at different levels of government.
Citizens and businesses alike can greatly benefit from a good provision of this type of information on the Internet. It will facilitate their communication with the public administrations and can increase their participation in the democratic process. Public sector information is very important for democratic and civic life. Equally, public sector information is a key resource for economic activity and proper functioning of the internal market. By increasing the use of public sector information, it is expected that better quality information will be used by a larger group of citizens and companies and that it will allow them to better take advantage of their rights in the internal market.
Indeed, public sector information also has a considerable economic potential. The new information society technologies have led to unprecedented possibilities to combine data taken from different sources and create added value products and services. Public sector information is an essential basis for many digital information products and could become an important raw material for new services and in particular for the wireless Internet i.. It is an important asset that can become a key factor in the further development of the content sector, that already has a market size of EUR 433 billion, employing some 4 million Europeans. Content production has given rise to rapid job creation in recent years and can continue to do so. Better conditions for the exploitation of public sector information will therefore boost economic activity and job creation. In addition a better use of public sector information will lead to other benefits for the citizens in the form of a range of added-value information products that the public sector itself cannot provide.
The further integration of the European economies and the development of the wireless Internet will lead to an increasing demand for pan-European information products and services (mobile tourist services, European business information services etc). Establishing this type of product based on public sector information is, however, a challenging task. Rules and practices for re-using the information diverge between countries or may simply not be clear. Difficulties in one or two countries can prevent a content aggregator to make a viable European Union-wide product. This has a clear effect on the European market, since uncertainty about the conditions for using the information prevents companies to step into the cross-border exploitation of public sector information. In particular SMEs may be put off, because for them any major investment failure can have consequences for the continuity of the firm. A minimum set of common rules will create conditions for greater certainty and make it easier to establish Union-wide products. It could also facilitate the tasks of the public sector bodies themselves, that are now often burdened with establishing ad hoc policies when faced with a request to re-use information.
The difficulties establishing cross-border information services do not only affect the producers of these services, but also have a negative impact on the users. The availability of reliable information services covering, for example, administrative procedures, traffic, investment conditions or the environmental situation across different Member States is a valuable tool for firms operating within the internal market, as well as being important for citizens. The difficulties to exploit public sector information, therefore, have potential negative effects on the internal market as a whole.
This Directive will ensure that in relation to the re-use of public sector information the same basic conditions apply to all players in the European information market, that more transparency is achieved on the conditions for re-use and that unjustified market distortions are removed. There are several reasons why the Commission is proposing a Directive on the exploitation of public sector information as the most proportionate way of achieving results in this area and why co-ordination between and/or a recommendation to the Member States does not suffice to redress the situation, also in the light of the economic importance of the issue at stake. The present proposed Directive will offer legal certainty for the market players and establish deadlines for changes, while leaving Member States free to choose the precise way in which its provisions would apply adapted to local circumstances. It will provide a clear answer to the internationalisation of information needs and to the pan-European nature of several of the information products and services. It will avoid a piecemeal approach as Member States move ahead in this area at different moments.
Furthermore the absence of action or too limited action in this area may lead to the unpleasant discovery in a few years that there are still considerable barriers to the European Union-wide exploitation of public sector information and that the gap with the US has increased. Previous experience with the 1989 Guidelines i issued by the Commission services on the exploitation of public sector information suggests that a non-legislative approach in this area will not lead to the necessary results. In practice these guidelines have had little impact.
Moreover, pursuing individual infringement cases under the existing Treaty rules (competition rules, non-discrimination rules, rules on the free movement of services) does not on its own offer the certainty required by the whole of the sector in order to make investments in new products and services. They offer a relatively limited remedy and would not necessarily apply in other situations. Furthermore, testing of the boundaries of the existing legal remedies through a series of specific cases will take a long time, in the case of actions in national courts and will be expensive for the companies concerned. At the same time the judicial decisions would not resolve the underlying problem of the divergent rules and practices that exist in the different Member States.
The proposal for a Directive will not negatively affect the possibility for citizens to access the documents at source. It will not change the existing rules for access to documents in the Member States and will maintain the level of protection of personal data under the existing data protection rules.
As highlighted above, diverging or unclear national legislation and/or practices by public bodies hamper a smooth functioning of the internal market for products and services. A minimum of certainty and transparency on the conditions for re-use of public sector information in Europe is missing, which considerably impedes the establishment of cross-border products and services based on public sector information and, thus, the development of a real European information market.
Against this background, this proposal aims to further the objectives of the internal market defined in article 95 of the EC Treaty, dealing with harmonisation provisions aiming at a smooth establishment and functioning of the internal market. To this end, measures - implying regulations, decisions, directives or recommendations - can be adopted following the co-decision procedure (Article 251).
The goals of this proposed Directive are to facilitate the establishment of European information services based on public sector information, to enhance an effective cross-border use of public sector information by private companies for added-value information products and services, to limit distortions of competition on the European market and to avoid that a different pace in the Member States in dealing with the re-use of public sector information will lead to further fragmentation. These goals cannot therefore be sufficiently reached by the individual Member States in view of their intrinsic European scope and impact and can, therefore, best be reached at Community level.
The Directive limits itself to the minimum harmonisation that is needed to pursue these goals. The choice of a Directive as the appropriate instrument to tackle the issues at stake is explained above. It leaves a considerable margin for manoeuvre for the governments but will at the same time help to ease or overcome the main barriers for industry by setting a number of basic principles.
The proposal is, therefore, fully in line with the principles of subsidiarity and proportionality.
A positive impact on the information market
Improved possibilities to re-use public sector information based on a harmonised legal framework will foster investment and innovation on the information market through increased certainty and transparency. This can be expected to lead in turn to growth and increased competitiveness of the digital content industry and bring benefits to consumers.
The sheer size of the economic value of public sector information in the European Union shows the potential of this area: this value has recently been estimated at around EUR 68 billion i. This is comparable to the size of industries such as legal services and printing. A better use of the economic potential of public sector information will lead to increased activity and job-creation in the digital content industries. Many of these jobs will be created in SMEs.
Looking ahead, the market for mobile content is expected to become substantial. A recent study i estimates the European mobile content market size in 2006 at around EUR 19 billion. The study states that attractive public sector information applications and added-value applications based on public sector information can be a key element in developing this emerging services market.
The proposed measures will thus create enhanced opportunities for the content industry in Europe to use public sector information for value-added information products. The challenge for European industry is to fully exploit this opportunity.
Over the last few years, a series of studies have tried to model and assess the economic impact of more open data policies. The debate has mainly focused on the issue of charging, opposing the low cost model practised in the United States - where charges for re-use of federal government information do not exceed the marginal costs for the reproduction and dissemination - with cost-recovery models used in Europe. Most analyses - on the basis of economic modelling and/or empirical sector-based approach - lead to the conclusion that low-pricing models give the highest benefits for society as a whole i. A detailed study into a number of databases exploited by public sector bodies indicates that charging marginal costs for reproduction and dissemination leads by far to the highest economic impact and welfare effects i. It will in particular benefit SMEs and starting companies. An additional advantage over the cost-recovery models is that it also opens up public sector information for citizens. One study specifically takes into account the potential effects on tax-incomes and points out that increased economic activity as a result of lower licence fees for the re-use of public sector information will overall benefit the state finances i. An analysis by the UK Treasury i in the context of the 2000 Spending review, asks for caution, while at the same time recognising the need to include an incentive structure that ensures that departments, and particularly Trading funds, do not choose to produce a small output at high costs, which they are still able to cover by passing on high prices to buyers. Simple inertia and the desire for a quiet life may be the principal barriers to extending the utilisation of government information, while covering costs. The Spending Review was the basis for the provision of a set of core government information to re-users without any charges.
The present proposal takes into account that certain public sector bodies depend on the income from the sales of their information resources to finance part of their operations. It does not impose any radical change as to the charging policies. Although it incites Member States to stimulate public sector bodies to adopt the marginal cost for reproduction and dissemination approach where possible, it leaves it to the Member States and public sector bodies to define the charging policies. The proposal thus allows for the full recovery of production and related costs for the production of a document by the public sector bodies involved, including a reasonable return on investment. The only restriction imposed is an upper limit in cases where the public sector bodies make unreasonable profits on the basis of their information resources.
The review of this Directive, foreseen after 3 years of its entry into force, will address in particular the overall impact of the Directive in increasing the availability of public sector information for re-use and its impact on government revenues.
The issue of charges is just one of the elements addressed by this proposal. Increased transparency and equal market conditions can be expected to have a considerable impact on the possibilities to re-use public sector information i. These measures will enhance European Union-wide information services and economic activity based on public sector information, without negatively affecting the income of the public sector bodies concerned. Although the effects of transparency are hard to quantify, clarity and consistency are considered essential conditions for market-development i. The same is true for the limitation of monopolistic behaviour: both economic theory and practice indicate that such behaviour can have a considerable negative impact on the development of the information market.
The measures in this Directive include provisions that may require a supplementary effort of the public sector bodies concerned. These provisions do, however, not go beyond what could be expected as proper administrative practice.
The general approach of this proposal for a Directive is one that aims at a minimal extra burden on the public sector bodies. Documents can be made available in their pre-existing formats and there is no obligation to create documents or to adapt documents into a different format. Implementing the proposed measures should, therefore, have a limited impact on the Member States public administrations in terms of operational resources.
Contents
- RESULTS OF CONSULTATIONS
- A fragmented European market
- The choice of legal instrument
- 2. CHOICE AND JUSTIFICATION OF THE LEGAL BASE
- 3. SUBSIDIARITY AND PROPORTIONALITY
- 4. IMPACT OF IMPLEMENTING THE PROPOSAL
- The impact of different charging models
- Impact of transparency and equal market conditions
- Practical burden on public sector bodies
- WITH INTERESTED PARTIES
- 6. DETAILED DESCRIPTION OF THE PROPOSAL
- Aim and Scope (Article 1)
- Activities outside the scope of the public task
- Data protection
- Public service broadcasters, cultural and educational establishments
- Definitions (Article 2)
- General principle (Article 3)
- Availability (Article 4)
- Time and requirements in case a request is rejected (Article 5)
- Principles for charging (article 6)
- Non-discrimination (article 7)
- Transparency (article 8)
- Facilitating re-use (article 9)
- Fair trading (article 10)
- EC Institutions
The proposal for a Directive builds on, amongst others, the reactions to the Green Paper on 'Public Sector Information: a key resource for Europe' (COM(1998) 585), adopted by the Commission on 20 January 1999 i and the consultations that followed the publication of this Green Paper.
Furthermore, an online consultation was launched to collect comments and reactions from the stakeholders on the contents of a legal instrument. The deadline of the consultation was 21 February 2002. 77 organisations have reacted to this consultation. The re-users (industry) are very positive and clearly indicate in line with earlier comments that a Directive would be the appropriate instrument to tackle the problems. The data-holders express some concerns about the proposal, in particular about the issue of charging, although they often tend to share the view that the conditions for re-use throughout Europe could and should be improved.
The proposed Directive follows the basic orientations as expressed by the Commission in its Communication of 23 October 2001 (COM(2001) 607) on the issues of scope, on the leading principle, on fair trading and on a number of practical issues.
This directive will apply to documents that are generally accessible, unless they are subject to a specific exception provided for in this proposal.
In the context of the use of public sector information, public sector bodies may use the same documents in activities linked to their public tasks and in commercial activities outside their public task. The latter involve adding value to information they have collected for specific clients, or developing added-value products for a broad consumer market that build upon the original data gathered within the exercise of their public tasks. Examples of these commercial activities are market surveys based on statistical information or customised weather forecasts based on meteorological data. While the basic information gathered with public money and in the exercise of the public task should be available for re-use, the commercial information products and services derived from that information should not. Nevertheless, in order to ensure a level playing field when a public sector body and third parties offer information products and services derived from the same information certain safeguards should apply. In particular, the charges and other conditions associated with the provision of public information for those commercial activities should be the same as those applied to third parties requesting such information (see article 7). The scope of the public task of a public sector body will often be defined by law or by other binding rules in the Member States. In the absence of such rules it should be defined in line with common administrative practice in the Member State in question. This directive does not seek to harmonise the scope of the public tasks assigned by Member States.
Intellectual property rights i
The intellectual property rights third parties may have on information held by the public sector bodies are not affected by the measures proposed. In many instances information products and services may have been developed by the public sector in conjunction with private sector partners or the intellectual property rights may belong to the employees of public sector bodies. The rights of such third parties are not affected by what is proposed.
The proposal does, however, have an effect on the way the public sector bodies themselves can exercise their intellectual property rights. Whereas the general legal framework in which intellectual property rights subsist and are administered is given at European level by Directive 2001/29/EC i on copyrights and related rights in the Information Society and Directive 96/9/EC i on the legal protection of databases, this proposal sets reasonable boundaries to the exercise of intellectual property rights by public sector bodies. The proposal does not affect the existence or ownership of intellectual property rights of public sector bodies. It does not remove the protection for intellectual property rights which currently exists, for instance legal remedies against unauthorised re-use and does not take away the possibility to impose conditions on the re-use and, hence, to exclude undesirable forms of re-use through a licence.
The obligations of this Directive shall only apply in so far as the obligations imposed are compatible with the provisions of international agreements on the protection of intellectual property rights, in particular the Berne Convention for the protection of Literary and Artistic works and the Agreement on Trade-related Aspects of Intellectual Property Rights.
The proposal for a Directive does not affect in any way the full respect of the existing data protection rules. If, for data protection reasons, the information is not generally accessible it will not be exploitable. This includes the case where specific conditions for consultation of personal data held by public sector bodies exist (for example, the need to prove a legitimate interest for data protection reasons, access limited to certain parts of the information).
In order to avoid any doubts about the question whether public service broadcasters should be considered as public sector bodies within the definition of this Directive, they are explicitly excluded from its scope. This exclusion reflects their particular position which has been recognised in the Protocol attached to the Amsterdam Treaty that recognises their particular position.
More in general, certain public sector bodies in the cultural and educational area merit a special treatment in view of a combination of different factors. The application of the Directive may cause a relatively high administrative burden for them in comparison to the benefits to be gained. Much of their information would anyhow fall outside the scope of the Directive in view of third party copyrights. Finally, their function in society as carriers of culture and knowledge give them a particular position.
The definition that figures in the Directives relating to public procurement has been the starting point for the definition of public sector bodies. It covers publicly financed or controlled bodies, with the exclusion of state companies.
The definition of document in the proposal for a Directive - any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) - is a broad definition that reflects the needs of the Information Society. It covers all types of content, varying from audiovisual material to databases, digitised or not. It would, for example, be awkward in the Internet age to make a distinction between the proceedings of a governmental conference and the web-cast of that same conference. A similar definition is also used in the Regulation on the access to the documents of the Institutions that was adopted in 2001 i.
'Documents generally accessible'. The measures facilitating the re-use of public sector information throughout the European Union build upon the existing access rules applied in the Member States. It does not propose changes to these rules. Since the proposal for a Directive builds upon the existing access regimes it will not apply to documents concerning public security, defence, state security and the activities of the state in court proceedings as far as they are not covered by special regimes. Also documents or the parts of documents that contain commercially sensitive information, for example business secrets, will not be addressed to the extent that they are covered by the national access regimes.
If documents are used by public sector bodies for their own information products or services, they are considered to be generally accessible. The mere fact that a public sector body commercialises its information cannot justify the exclusion of this information from the scope of this proposal.
Article 3 indicates that if public sector bodies allow the re-use of documents, the conditions in chapters II and III will apply. It does not oblige the public sector bodies to allow the re-use of specific documents, but Member States are invited to stimulate public sector bodies to make the documents available for re-use.
The aim of this article is to give requesters the possibility to ask for documents in any format or language available (for example different electronic formats) which can considerably help them to process the documents. Electronic transmission is favoured, but given that many of the documents are still paper-based and that not everyone has access or the capacity to use the tools of the information society, paper-based transmission is not excluded. In order to avoid an excessive burden for public sector bodies, the Article foresees that there is no obligation for the public sector body to create or adapt documents into a different format or language. A need to adapt a document may only exist in case part of the document is not generally accessible (that part of the document may have to be separated from the rest of the document to allow the re-use of the parts of the documents that are generally accessible).
The Article concerns cases in which prior authorisation is needed for the re-use of the documents. In many cases such an authorisation will not be needed and then the information can simply be taken from the web and re-used.
In order to respect the differences in the national access regimes, a regime is proposed that brings replying times to requests for re-use in line with the timeframes applicable for accessing the information.
The control over information in a specific area puts public sector bodies in a position where they can have market power. In the same way as undertakings in a dominant position cannot abuse their market power, public sector bodies should not set their prices arbitrarily and should not charge excessive prices for information that has been established within the public tasks and with public money. However, public sector bodies are entitled to recover the investment made to produce the information. Therefore, this draft Directive proposes principles for charges based on a cost-oriented approach. Where charges are made, the total income from allowing the access to or the re-use of these documents should not exceed the cost of producing, reproducing and disseminating them, together with a reasonable profit margin. In case of a dispute the burden of proof that the charges are cost-oriented is on the public sector body, unless there is such transparent accounting in place as to allow the prospective re-user to verify whether this principle is respected.
This does not of course prevent the public sector body from charging lower prices for the re-use of the document or from not charging at all.
In order to create a level playing field, charges and other conditions for commercial re-use should be non-discriminatory. Similarly conditions should be non-discriminatory for comparable organisations that re-use the information for non-commercial purposes.
Some public sector bodies also carry out commercial activities outside the public task next to their public activities. The charges and other conditions associated with the provision of public information for those commercial activities should be the same as those applied to third parties requesting such information. If not there is a risk that the public sector body involved could abuse its privileged position to gain a competitive advantage over other market players.
This article imposes transparency in the conditions for re-use (charges and other conditions). It can be expected that the conditions for re-use will be published by the body concerned on the Internet, in particular if the documents concerned are published themselves on the Internet. Such transparency allows to ascertain that the rules which are applied are pre-established and objective and thus do not run the risk of conflict with the basic competition policy principles. It thereby creates a more predictable environment for investment decisions and planning by those reusing the information.
Member States shall ensure that standard licence agreements for the commercial exploitation of public sector information are available online, and can be processed online. This does not imply that there will be a European model for these online standard licences. It is up to the Member States to decide about the right level of government to establish these standard licences. In practice each public sector body licensing information could have its own online licence, although a certain standardisation would facilitate the re-use of information for re-users that have to deal with different public sector bodies.
Article 10 limits the possibility for public sector bodies to have exclusive arrangements for the exploitation of public sector information, where the arrangements unjustifiably restrict competition or the commercial re-use of information. Indeed, to the extent that an exclusive arrangement would lead to an abuse of a dominant position by the undertaking that benefits from it and thereby to a violation of the competition rules of the EC Treaty (Article 82 in conjunction with article 86), this Directive reflects the Treaty obligation of removing all unjustified exclusive arrangements.
In some specific cases an exclusive arrangement may however be justified (Article 10.2). Whether a situation justifies exclusivity, and thus whether it does not unjustifiably restrict competition, would be eventually decided on a case by case basis and in application of Article 86 of the Treaty.
Although this Directive is addressed to the Member States, the rules for the re-use of information resources will also be respected by the Community institutions. Over the last few years main information holders within the institutions, such as the Office for Official Publications and Eurostat have already made considerable efforts to arrive at a transparent and non-discriminatory policy for the re-use of their information resources and will operate in line with the rules expressed in this text.