European Public Sector Information Platform Topic Report No / 3. The amendment of the PSI directive: where are we heading?

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1 European Public Sector Information Platform Topic Report No / 3 The amendment of the PSI directive: where are we heading? Author: Katleen Janssen Published: April 2012

2 Keywords PSI re-use, European Commission, open data, legislation, directive, proposal Abstract In December 2011, the European Commission published a proposal for a directive amending the 2003 PSI directive. This topic report discusses the amendments proposed by the Commission, and indicates what effect these amendments would have on the rights of the re-user and the obligations of the public sector bodies. The proposal is part of the Digital Agenda for Europe and the Europe 2020 strategy, and intends to provide the market with an optimal legal framework to stimulate the market for PSI-based products and services. The main changes include the inclusion of museums, archives and libraries in the scope of application, the creation of a right of re-use, marginal cost charging as a default, and the creation of an independent authority with regulatory powers.

3 Table of Contents 1 Introduction 4 2 Background The 2010 review of the PSI directive Impact assessment 6 3 Proposed amendments to the PSI directive Subject matter and scope Definitions General principle Requirements applicable to the processing of requests for re-use Available formats Charges Transparency Licences Practical arrangements Prohibition of exclusive arrangements Transposition and review 13 4 Next steps 14 5 Conclusion 16 Annex 17

4 1 Introduction On 12 December 2011, the European Commission launched its Open Data Strategy for Europe. This strategy is set out in the Commission s Communication on open data 1 and consists of three main pillars that should strengthen the re-use of public sector information (PSI) in the European market and reduce the barriers and fragmentation across the European Union. These three pillars are: The adaptation of the legal framework for the re-use of PSI: the Commission adopted a proposal for the amendment of the 2003 PSI directive 2, in order to introduce some changes that are needed to stimulate the PSI market. 3 Next, it also adopted a new Decision on the re-use of its own documents. 4 The mobilisation of financing instruments in support of open data and deployment actions: this includes financial support for research and development, for technology innovation and uptake (e.g. under Horizon 2020 and the CIP ICT-PSP programme), and for the development of an infrastructure for scientific data in Europe. In addition, the Commission will create two interlinked European data portals, one for the European Commission s own data and one pan-european portal that will give access to datasets from across the European Union. The facilitating of coordination and the sharing of experience across the Member States: for this, the Commission will use existing platforms, such as the PSI group 5, the epsi platform 6, the LAPSI network 7 and the ISA action on semantic interoperability. 8 1 European Commission (2011). Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Open data: an engine for innovation, growth and transparent governance, COM(2011)882 final, see n.pdf. 2 European Parliament and Council (2003). Directive 2003/98/EC of 17 November 2003 on the re-use of public sector information, OJ L 345/90, 31 December European Commission (2011). Proposal for a directive of the European Parliament and of the Council Amending Directive 2003/98/EC on re-use of public sector information, COM(2011)877 final, see 4 European Commission (2011). Decision of 12 December 2011 on the reuse of Commission documents, OJ L 330/39, 14 December The main changes in the new Decision involved the inclusion of the research information of the Joint Research Centre, measures to improve the implementation of the Decision, and a specific reference to machine-readable formats. This Decision will not be further discussed in this topic report. 5 See 6 See 7 See epsiplatform Topic Report No: 2012/ 3 April 2012 Page 4

5 This topic report addresses the proposal for amending the PSI directive and the changes it might bring to the current legal framework underpinning re-use. After providing some context regarding the process towards the proposal, it will compare the proposed amendments with the existing provisions of the PSI directive and try to assess the impact of the possible changes. Obviously, any future developments will also be reported on by the epsiplatform. 8 See epsiplatform Topic Report No: 2012/ 3 April 2012 Page 5

6 2 Background 2.1 The 2010 review of the PSI directive Under the action area of the Digital Agenda called A vibrant single market, the European Commission committed itself to reviewing the PSI directive (notably its scope and charging principles) by This review, held in 2010, followed an earlier review of 2008, which could not yet provide sufficient information for the European Commission to fully evaluate the impact of the directive. The public consultation for the second review of the PSI directive in 2010 focused on three main topics: the scope of the directive, the general principle, and the charging principles applying to the reuse of PSI. The public consultation showed that most of the close to 600 respondents agreed that the PSI directive had not reached its full potential and that further actions on the European level were required, including but not limited to legislative amendments. The extension of the scope of the directive to cultural institutions and the inclusion of a more binding principle that all accessible PSI should be reusable were generally applauded, while opinions about the appropriate charging policies remained divided. 10 Based on the results from the public consultation and a number of studies, a.o. about the charging regimes and the inclusion of cultural institutions 11, the European Commission developed a proposal for amending the PSI directive. 2.2 Impact assessment For any legislative proposal from the European Commission that has a significant economic, social or environmental impact, an Impact Assessment has to be prepared in order to ensure the quality of the proposal. This Impact Assessment has to identify the problems the proposal wants to target, set out alternative options for addressing these problems, analyse the costs and benefits of the different options and explain why a particular option is preferred European Commission (2010). Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A digital Agenda for Europe, COM(2010) 245 final, see 10 European Commission (2011). Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Open data: an engine for innovation, growth and transparent governance, COM(2011)882 final, see n.pdf. See also Janssen, Katleen (2011) "The role of public sector information in the European market for online content: a neverending story or a new beginning?", Info - The journal of policy, regulation and strategy for telecommunications, information and media, Vol. 13, No. 6, For an overview of the different studies available, see 12 For more information, see epsiplatform Topic Report No: 2012/ 3 April 2012 Page 6

7 The impact assessment for the proposal amending the PSI directive examined 5 policy options 13 : Option 1. No policy change: maintaining the current approach without changes This option would entail that the current PSI directive and the national implementation laws would remain in place. While this would guarantee that a minimum set of rules are in force to protect the re-use of PSI, it would also mean that the shortcomings to the legal and the barriers to the growth of the information market framework found in the 2010 review would remain in place. The European market for re-use would remain fragmented and uncertain. Option 2. Discontinuing existing EU action: repeal of the PSI directive This option would result in the removal of all regulatory obligations of the PSI directive and the transposing legislation. This would mean that companies and citizens would no longer have the rights and guarantees created by the PSI directive. The Member States would be free to determine the necessary measures for ensuring re-use of PSI, possibly leading to considerable differences between the national approaches. Option 3. Soft law measures in the form of guidance/recommendations These soft law instruments could provide additional information or clarify the interpretation of the provisions of the PSI directive, e.g. guidelines on licensing conditions or on cost calculation for allowable charges, or guidance on data formats. Using soft law measures allows the Member States some flexibility to apply the guidelines in a manner that enables taking into account national policy and practice. However, this would increase the possibility of diverging national approaches. Moreover, as the measures would not be enforceable, some of the barriers for the development of the re-use market would still not be removed. Option 4. Amendments to the PSI directive This option would involve amending the text of the PSI directive in a manner that would affect the established rights and obligations. Suggestions for amendments in the Impact Assessment included extending the scope, establishing new charging rules, making all accessible documents reusable, requiring data to be published in machine-readable formats, requiring the appointment of an independent regulator, reversing the burden of proof relating to the compliance with the charging principles, and redefining the scope of the public task. The concrete changes that were proposed are discussed further on in the report. Amendments to the PSI directive would increase the harmonisation and provide stronger incentives for the European market for re-use. However, this would be accompanied by new implementation costs for the Member States. 13 European Commission (2011). Commission Staff Working Paper. Impact assessment accompanying the document Proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the re-use of public sector information, SEC(2011) 1551 final, assessment_report.pdf. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 7

8 Option 5. Packaged solution consisting of: (a) soft law measures and (b) amendments to the PSI directive This option would consist of a combination of option 3 and 4, both ensuring more consistency and transparency in the regulation of the PSI market and combining increased legal certainty with flexibility for the Member States with regard to licensing and charging. Of course, implementation costs would still be incurred. Based on a detailed evaluation of the impacts and risks for each option, the Impact Assessment indicated that Option 5 would offer the best balance between promoting re-use of PSI, harmonisation and legal certainty in the light of national circumstances Ibid, p. 61. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 8

9 3 Proposed amendments to the PSI directive In this section, we will discuss the proposed amendments and the possible impact they will have on the European market for re-use. The Annex to this report contains the consolidated text of all provisions of the directive, indicating the new sections in the text for each provision. The recitals of the proposal for the directive amending the PSI directive will not be discussed as such, but only insofar as they contribute to a better understanding of the amendments to the provisions. Accordingly, this section gives an objective overview of the changes, without including any opinions of the author or the epsiplatform. 3.1 Subject matter and scope Documents the supply of which is an activity falling outside the scope of the public task In the current article 1 of the PSI directive, documents the supply of which is an activity falling outside the scope of the public task of the public sector body are excluded from the scope of application of the directive. This includes for instance information products or services that are provided as a commercial added-value product on the market. The proposed amendment to the directive does not change this, but it limits the possibility of the Member States and the public sector bodies to call on this exception by requiring that this public task has to be defined by law or by other binding rules in the Member State in question. The current directive also allows for the public task to be defined in line with common administrative practice in the Member State. Now, a definition in general legislation, decisions for a particular sector or type of public body, or individual decisions will have to be adopted defining the public task for each public sector body. Archives, libraries and museums In order to include archives, libraries and museums in the scope of the PSI directive, amendments are proposed to article 1.2(e) on educational and research establishments and article 1.2(f) on cultural establishments. Under section (e), university libraries are now included in the scope of the PSI directive in respect of documents other than research documents protected by third party intellectual property rights. Second, under section (f), libraries, museums and archives are no longer part of the exemption for cultural establishments, with regard to the documents that are in the public domain or for which the libraries, museums and archives hold the intellectual property rights. While the directive will now apply to these institutions, specific provisions are included to accommodate their particular circumstances. 15 Intellectual property rights of employees Next to the existing provision of article 1.5 of the PSI directive ensuring respect for the provisions of international agreements on the protection of intellectual property rights, the new directive proposes to include an additional sentence stating that the provisions of the PSI directive are without prejudice to the economic or moral rights that employees of public sector bodies may 15 Cf. infra. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 9

10 enjoy under national rules. It is not clear how this provision relates to the general exemption of documents for which third parties hold intellectual property rights. 3.2 Definitions No changes are proposed to the existing definitions of the PSI directive. Only one additional definition is included for machine-readable. This means that digital documents are sufficiently structured for software applications to identify reliably individual statements of fact and their internal structure. This definition is important for determining the scope of the public sector bodies obligations regarding the available format of the documents General principle The general principle of article 3 of the current PSI directive leaves the decision to allow re-use of public sector documents to the Member States or even to the public sector bodies themselves. However, if re-use is allowed, then the Member States have to ensure that the documents can be re-used for commercial and non-commercial purposes under the conditions set out in the directive. Hence, the current directive does not create a full right of re-use. The proposal introduces a new general principle: the Member States have to ensure that all accessible documents are re-usable for commercial or non-commercial purposes in accordance with the rules of the directive. Hence, for any document that is accessible under national legislation regulating access to government information and that is not exempted from the field of application of the directive, a right of re-use is established. So if there is a right of access, there should also be a (conditional) right to re-use. An exception to this general principle is made for documents for which libraries (including university libraries), museums and archives have intellectual property rights. For this information, the Member States or the institutions involved can still decide themselves whether they choose to allow re-use or not. If they decide to do so, re-use must be possible for commercial and noncommercial purposes in accordance with the conditions of the directive. This exception does not apply to documents in the public domain held by libraries, museums and archives. These documents fall under the general right of re-use. 3.4 Requirements applicable to the processing of requests for re-use Article 4 of the PSI directive holds a number of requirements with regard to the time limits within which a request for re-use needs to be responded to, and the communication of the grounds of refusal and the possible means of redress in case of a negative decision. If a negative decision is based on the fact that a third party holds the intellectual property rights (and the documents are therefore exempt from the field of application of the directive), the public sector body has to include a reference to the rightholder (where known), or the licensor from which the material was obtained. Under the Commission s new proposal, libraries, museums and archives would not be required to include such a reference (even though they are now subject to the time limits and the other obligations with regard to communicating negative decisions). Considering the large number of possible third party material the museums, archives and libraries hold, including a reference to 16 Cf. infra. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 10

11 the rightholder for each document is considered to form a heavy administrative burden. An important new element introduced by the Commission s proposal is the demand for an independent authority to be set up in each Member State. The proposed amendment to the directive states that [t]he means of redress shall include the possibility of review by an independent authority that is vested with specific regulatory powers regarding the re-use of public sector information and whose decisions are binding upon the public body concerned. While the composition, governance structure and functioning of this independent authority remains under the discretion of the Member States, this authority should not just be an advisory body, but have the power to take binding decisions. To ensure consistency between the authorities of the Member States, exchange of knowledge and experience should be encouraged Available formats The European Commission s proposal for amending the PSI directive aims to promote the availability of machine-readable data for re-use. Therefore, it has included an amendment asking that public bodies make their documents available in machine-readable format (rather than just through electronic means, which could still include e.g. pdf documents) and together with their metadata, where this is possible and appropriate. This still does not mean that the public sector bodies have an obligation to create or adapt their documents to a machine-readable format in order to comply with a request. However, if such a format is available, it should be the preferred option for making the data available. 3.6 Charges As the provision on charging in the current PSI directive has been one of the most contested elements of the directive, the proposal for amending the directive contains considerable changes to the charging policy. Under the current article 6 of the PSI directive, [w]here charges are made, the total income from supplying and allowing re-use of documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. Charges should be cost-oriented. Hence, while in recital 14 the Member States are encouraged to make public sector documents available against charges not exceeding marginal costs for reproduction and dissemination, the directive still leaves a large margin of decision to the Member States. If the amendments in the Commission s proposal would be adopted, the charging policy of the Member States would have to change considerably. A number of important elements should be mentioned here: As a default, the total amount charged by public sector bodies should be limited to the marginal costs incurred for the reproduction and the dissemination of the public sector documents. Only in exceptional cases higher charges can be made, meaning in particular where public 17 See recital 14 of the European Commission s proposal. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 11

12 sector bodies generate a substantial part of their operating costs relating to the performance of their public tasks from the exploitation of their IPR. In such cases, the charges have to be determined according to objective, transparent and verifiable criteria, and the charging has to be in the public interest. The independent authority that has to be set up under the new proposal 18 has to approve the higher charges. An exception is made for libraries, museums and archives. They can still charge higher prices than the marginal costs for reproduction and dissemination. They do not have to obtain approval from the independent authority. Even in the exceptional cases and for the libraries, museums and archives, the existing upper limit of article 6 remains in place. Hence, all charges still have to be limited to the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. The burden of proof for compliance with these provisions lays with the public sector bodies. Hence, if challenged, they will have to prove that they are in the exceptional situation that justifies charges above marginal cost, and that their charges are determined according to objective, transparent and verifiable criteria and that they are in the public interest. 3.7 Transparency While transparency is still considered an important point of attention, only small changes are proposed to article 7 of the directive, which deals with transparency of applicable conditions and standard charges for re-use, in order to bring it in line with the proposed provisions on charging. The obligation for the public sector bodies to pre-establish and publish the conditions and standard charges remains, and also the obligation to indicate the calculation basis for the published charge. Next to the obligation of indicating the factors taken into account in the calculation of charges for atypical cases, the same obligation is included for any charges over and above the marginal cost. 3.8 Licences In order to emphasize that licences for the re-use of public sector information should place as few restrictions on re-use as possible 19 and to clarify the text of the current Article 8.1, a new provision for licensing is proposed. This provision would state that public sector bodies may allow re-use without conditions, or they may impose conditions, such as indication of source (often referred to as attribution), where appropriate through a licence. The conditions that are imposed should not unnecessarily restrict possibilities for re-use and cannot be used to restrict competition. In recital 13 of the new proposal, the Member States are asked to encourage the use of open government licences. 18 Cf. supra. 19 See recital 13 of the European Commission s proposal. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 12

13 3.9 Practical arrangements With regard to the practical arrangements for facilitating re-use, some changes are proposed by the European Commission that should increase the possibilities for cross-border re-use on the European market. 20 First, the practical arrangements put in place by the Member States should facilitate the cross-lingual search for documents available for re-use. Next, the asset lists of main documents should contain metadata, and should be accessible preferably online and in machinereadable format. As is already included in the current article 9 of the PSI directive, portal sites should be created that are linked to decentralised asset lists Prohibition of exclusive arrangements The current PSI directive prohibits exclusive arrangements between public sector information holders and third parties, unless an exclusive right would be necessary for the provision of a service in the public interest. In such cases, the validity of such exclusive rights should be subject to regular review, at least every three years. Existing exclusive arrangements that did not fall under the exception had to be terminated at the latest by 31 December As libraries, museums and archives would now be included in the scope of the directive, they would also need a transition period for ending their exclusive arrangements. The amendments suggest that any exclusive arrangements should be terminated not later than on 31 December six years after the entry into force of the new Article Transposition and review The Member States are given 18 months to adopt and publish the legislative measures needed to transpose the directive. They should communicate to the Commission the text of their main provisions of national law that transpose and implement the directive, and a correlation table between the old legislation and the new provisions. In addition, an annual report on the extent of the re-use of PSI, the re-use conditions and the work of the independent authority would have to be submitted by the Member States. A new review of the directive is planned three years after the entry into force. 20 See also recital 15 of the European Commission s proposal. 21 For an overview of the studies regarding exclusive arrangements in the Member States, see epsiplatform Topic Report No: 2012/ 3 April 2012 Page 13

14 4 Next steps The European Commission s proposal was adopted and transmitted to the European Parliament and the Council on 12 December The Parliament and the Council now have to review the proposal and they can suggest amendments in a co-decision procedure. In the meantime, also the European Economic and Social Committee has to be consulted. 22 Under the co-decision procedure of article 294 of the Treaty on the Functioning of the European Union, the European Parliament adopts its position on the proposal in a first reading and communicates this position to the Council. If the Council agrees with the Parliament, the directive will be adopted. If the Council does not agree, it adopts its own position at first reading and provides this to the European Parliament. In practice, the Council often already starts discussing the proposal without waiting for the official position of the European Parliament. Once the positions are adopted, the Commission can also issue a communication with its opinion on the proposed amendments. If the institutions do not agree during the first reading stage, the second reading phase starts from the moment the Council communicates its position to the European Parliament. From that point, the European Parliament still has three months to either approve the Council s position (in which case the directive is deemed to be adopted), to reject it (in which case the directive is considered not to be adopted), or to propose amendments. If the Parliament does not react within three months, the directive is adopted in the wording of the Council. Again, the Commission has a chance to issue an opinion on the proposed amendments, which the Council has to take into account. If the Parliament suggests amendments, the Council in its turn again has three months to either approve or refuse the amendments. In the latter case, the institutions will start a Conciliation procedure, in which representatives of the Council and the European Parliament, with support from the Commission, have to reach agreement on a joint text in six weeks. If a joint text is adopted, the European Parliament and the Council have a period of six weeks to adopt the text in a third reading. 23 For a schematic overview of the procedure, see figure 1 below. 22 Consultation of the Committee of the Regions is optional. See 23 For an overview of the timeline, see epsiplatform Topic Report No: 2012/ 3 April 2012 Page 14

15 Figure 1. EU directive procedure (from epsiplatform Topic Report No: 2012/ 3 April 2012 Page 15

16 5 Conclusion The European Commission s proposal to amend the PSI directive intends to increase the possibilities for cross-border re-use of public sector documents on the European market, and to tighten the obligations of the Member States and public sector bodies. Now it is up to the European Parliament and the Council to agree on the proposed amendments. While the adoption of a directive usually takes around 18 months to two years, it may be that amending an existing directive takes less time. In the meantime, the European Commission will stimulate the re-use market by funding research and development and promoting knowledge exchange, as announced in its Communication on open data. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 16

17 Annex This annex provides a consolidated version of the PSI directive, as it would look if all the European Commission s amendments were adopted. The new parts of the text resulting from the amendments are in bold. DIRECTIVE 2003/98/EC ON RE-USE OF PUBLIC SECTOR INFORMATION CHAPTER I GENERAL PROVISIONS Article 1. Subject matter and scope 1. This Directive establishes a minimum set of rules governing the re-use and the practical means of facilitating reuse of existing documents held by public sector bodies of the Member States. 2. This Directive shall not apply to: (a) documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as defined by law or by other binding rules in the Member State in question; (b) documents for which third parties hold intellectual property rights; (c) documents which are excluded from access by virtue of the access regimes in the Member States, including on the grounds of: the protection of national security (i.e. State security), defence, or public security, statistical or commercial confidentiality; (d) documents held by public service broadcasters and their subsidiaries, and by other bodies or their subsidiaries for the fulfilment of a public service broadcasting remit; (e) documents held by educational and research establishments, such as schools, universities, and research facilities including, where relevant, organisations established for the transfer of research results (except university libraries in respect of documents other than research documents protected by third party intellectual property rights) and; (f) documents held by cultural establishments, other than libraries, museums and archives; 3. This Directive builds on and is without prejudice to the existing access regimes in the Member States. This Directive shall not apply in cases in which citizens or companies have to prove a particular interest under the access regime to obtain access to the documents. 4. This Directive leaves intact and in no way affects the level of protection of individuals with regard to the processing of personal data under the provisions of Union and national law, and in particular does not alter the obligations and rights set out in Directive 95/46/EC. 5. The obligations imposed by this Directive shall apply only insofar as they are compatible with epsiplatform Topic Report No: 2012/ 3 April 2012 Page 17

18 the provisions of international agreements on the protection of intellectual property rights, in particular the Berne Convention and the TRIPS Agreement. The provisions of this Directive are without prejudice to the economic or moral rights that employees of public sector bodies may enjoy under national rules. Article 2. Definitions For the purpose of this Directive the following definitions shall apply: 1. public sector body means the State, regional or local authorities, bodies governed by public law and associations formed by one or several such authorities or one or several such bodies governed by public law; 2. body governed by public law means any body: (a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; and (b) having legal personality; and (c) financed, for the most part by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law; 3. document means: (a) any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); (b) any part of such content; 4. re-use means the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use; 5. personal data means data as defined in Article 2(a) of Directive 95/46/EC. 6. 'machine-readable' means that digital documents are sufficiently structured for software applications to identify reliably individual statements of fact and their internal structure. Article 3. General principle (1) Subject to paragraph (2) Member States shall ensure that documents referred to in Article 1 shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV. (2) For documents for which libraries (including university libraries), museums and archives have intellectual property rights, Member States shall ensure that, where the re-use of documents is allowed, these documents shall be re-usable for commercial or non-commercial epsiplatform Topic Report No: 2012/ 3 April 2012 Page 18

19 purposes in accordance with the conditions set out in Chapters III and IV. CHAPTER II REQUESTS FOR RE-USE Article 4. Requirements applicable to the processing of requests for re-use 1. Public sector bodies shall, through electronic means where possible and appropriate, process requests for re-use and shall make the document available for re-use to the applicant or, if a licence is needed, finalise the licence offer to the applicant within a reasonable time that is consistent with the timeframes laid down for the processing of requests for access to documents. 2. Where no time limits or other rules regulating the timelyprovision of documents have been established, public sector bodies shall process the request and shall deliver the documents for reuse to the applicant or, if a licence is needed, finalise the licence offer to the applicant within a timeframe of not more than 20 working days after its receipt. This timeframe may be extended by another 20 working days for extensive or complex requests. In such cases the applicant shall be notified within three weeks after the initial request that more time is needed to process it. 3. In the event of a negative decision, the public sector bodies shall communicate the grounds for refusal to the applicant on the basis of the relevant provisions of the access regime in that Member State or of the national provisions adopted pursuant to this Directive, in particular Article 1(2)(a), (b) and (c), or Article 3. Where a negative decision is based on Article 1(2)(b), the public sector body shall include a reference to the natural or legal person who is the rightholder, where known, or alternatively to the licensor from which the public sector body has obtained the relevant material. However, libraries (including university libraries), museums and archives shall not be required to include such a reference. 4. Any negative decision shall contain a reference to the means of redress in case the applicant wishes to appeal the decision. The means of redress shall include the possibility of review by an independent authority that is vested with specific regulatory powers regarding the re-use of public sector information and whose decisions are binding upon the public sector body concerned. 5. Public sector bodies covered under Article 1(2)(d), (e) and (f) shall not be required to comply with the requirements of this Article. CHAPTER III CONDITIONS FOR RE-USE Article 5. Available formats 1. Public sector bodies shall make their documents available in any pre-existing format or language, in machine-readable format and together with their metadata where possible and appropriate. This shall not imply an obligation for public sector bodies to create or adapt documents in order to comply with the request, nor shall it imply an obligation to provide extracts from documents where this would involve disproportionate effort, going beyond a simple epsiplatform Topic Report No: 2012/ 3 April 2012 Page 19

20 operation. 2. On the basis of this Directive, public sector bodies cannot be required to continue the production of a certain type of documents with a view to the re-use of such documents by a private or public sector organisation. Article 6. Principles governing charging 1. Where charges are made for the re-use of documents, the total amount charged by public sector bodies shall be limited to the marginal costs incurred for their reproduction and dissemination. 2. In exceptional cases, in particular where public sector bodies generate a substantial part of their operating costs relating to the performance of their public service tasks from the exploitation of their intellectual property rights, public sector bodies may be allowed to charge for the re-use of documents over and above the marginal costs, according to objective, transparent and verifiable criteria, provided this is in the public interest and subject to the approval of the independent authority referred to in Article 4(4), and without prejudice to paragraphs 3 and 4 of this Article. 3. Notwithstanding paragraphs 1 and 2, libraries (including university libraries), museums and archives may charge over and above the marginal costs for the re-use of documents they hold. 4. Where charges are made, the total income from supplying and allowing re-use of documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. Charges should be cost-oriented over the appropriate accounting period and calculated in line with the accounting principles applicable to the public sector bodies involved. 5. The burden of proving that charges comply with this Article shall lie with the public sector body charging for re-use. Article 7. Transparency Any applicable conditions and standard charges for the re-use of documents held by public sector bodies shall be pre-established and published, through electronic means where possible and appropriate. On request, the public sector body shall indicate the calculation basis for the published charge. The public sector body in question shall also indicate which factors will be taken into account in the calculation of charges over and above the marginal costs or for atypical cases. Public sector bodies shall ensure that applicants for reuse of documents are informed of available means of redress relating to decisions or practices affecting them. Article 8. Licences 1. Public sector bodies may allow for re-use without conditions or may impose conditions, such as indication of source, where appropriate through a licence, dealing with relevant issues. These conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 20

21 2. In Member States where licences are used, Member States shall ensure that standard licences for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically. Member States shall encourage all public sector bodies to use the standard licences. Article 9. Practical arrangements Member States shall ensure that practical arrangements facilitating the crosslingual search for documents available for re-use are in place such as assets lists, of main documents with relevant metadata, accessible preferably online and in machine-readable format, and portal sites that are linked to decentralised asset lists. CHAPTER IV NON-DISCRIMINATION AND FAIR TRADING Article 10. Non-discrimination 1. Any applicable conditions for the re-use of documents shall be non-discriminatory for comparable categories of re-use. 2. If documents are re-used by a public sector body as input for its commercial activities which fall outside the scope of its public tasks, the same charges and other conditions shall apply to the supply of the documents for those activities as apply to other users. Article 11. Prohibition of exclusive arrangements 1. The re-use of documents shall be open to all potential actors in the market, even if one or more market players already exploit added-value products based on these documents. Contracts or other arrangements between the public sector bodies holding the documents and third parties shall not grant exclusive rights. 2. However, where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years. The exclusive arrangements established after the entry into force of this Directive shall be transparent and made public. 3. Existing exclusive arrangements that do not qualify for the exception under paragraph 2 shall be terminated at the end of the contract or in any case not later than 31 December However, such arrangements involving cultural establishments and university libraries shall be terminated at the end of the contract or in any case not later than 31 December 20XX [6 years after entry into force of the Directive]. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 21

22 CHAPTER V FINAL PROVISIONS Article 12. Implementation Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. 24 Article 13. Review 1. The Commission shall carry out a review of the application of this Directive before [3 years after the transposition date] and shall communicate the results of this review, together with any proposals for modifications of the Directive, to the European Parliament and the Council. 2. The review shall in particular address the scope and impact of this Directive, including the extent of the increase in re-use of public sector documents, the effects of the principles applied to charging and the re-use of official texts of a legislative and administrative nature, as well as further possibilities of improving the proper functioning of the internal market and the development of the European content industry. 3. Member States shall submit a yearly report to the Commission on the extent of the re-use of public sector information, the conditions under which it is made available and the work of the independent authority referred to in article 4(4). 24 The reference to the time limit for implementation is no longer in article 12 of the PSI directive, but the amending directive would include a separate article on the implementation containing comparable elements as the current article 12: (1) Member States shall adopt and publish, by 18 months at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. (2) When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 22

23 About the author Katleen Janssen (1978) is a postdoctoral researcher in information law at the Interdisciplinary Centre for Law and ICT at the Faculty of Law at the KU Leuven and a professional support lawyer at time.lex law firm. Katleen specialises in access to and use of Public Sector Information, open government data, and SDI- and GIS-matters. This includes policies promoting the availability of information and policies restricting such availability, e.g. privacy protection, intellectual property rights, etc. In 2009, Katleen obtained her Phd with a thesis about the legal framework for the availability of public sector spatial data, mainly dealing with the relationship between INSPIRE, PSI and access to environmental information. For more information, see Copyright information 2011 European PSI Platform - This document and all material therein has been compiled with great care. However, the author, editor and/or publisher and/or any party within the European PSI Platform or its predecessor projects the epsiplus Network project or epsinet consortium cannot be held liable in any way for the consequences of using the content of this document and/or any material referenced therein. This report has been published under the auspices of the European Public Sector Information Platform. The report may be reproduced providing acknowledgement is made to the European Public Sector Information (PSI) Platform. The European Public Sector Information (PSI) Platform is funded under the European Commission econtentplus programme. epsiplatform Topic Report No: 2012/ 3 April 2012 Page 23

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