European Scrutiny Committee Contents


7 Open data — re-use of public sector information

(a)

(33543)

18554/11

COM(11) 882

(b)

(33544)

18555/11

COM(11) 877

+ ADDs 1-2


Communication: Open Data — An engine for innovation, growth and transparent governance


Draft Directive amending Directive 2003/98/EC on re-use of public sector information

Legal base(a)  —

(b)  Article 114 TFEU; co-decision; QMV

Documents originated(Both) 12 December 2011
Deposited in Parliament(a) 15 December 2011

(b) 12 December 2011

DepartmentsCabinet Office and Justice
Basis of considerationEM of 12 January 2012
Previous Committee ReportNone
Discussion in CouncilNo date set
Committee's assessmentLegally important
Committee's decision(a) Cleared

(b) Not cleared; further information requested

Background

7.1 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 Communication

7.2 In its Communication the Commission sets out its proposed open data strategy in the form of a package of measures designed to help overcome existing barriers, as part of the Digital Agenda for Europe. The package consists of three strands which the Commission states will reinforce each other:

  • adapting the legal framework for data re-use, including through a proposal for a revised Directive on the re-use of public sector information (the re-use Directive), a revised Commission Decision on the re-use of its own information and soft law and policy measures;
  • mobilising financing instruments in support of open data in research, development, innovation, competitiveness programmes and European infrastructure programmes; and
  • facilitating coordination and experience sharing across the Member States.

7.3 These strands are supplemented by concrete proposals. Those concerning the first strand are set out from paragraph 7.7 below.

7.4 European Open Data Portals and platforms: This refers to the introduction of a portal providing access to Commission data and datasets from across the EU. The intention is to then establish a separate pan-European portal that will be in place from 2013. The Commission envisages that this portal will link to portals and sites across Member States' own data portals such as the UK's data.gov.uk.

7.5 Open Data for Science: This refers to a separate Communication and recommendation on scientific information which will be launched in early 2012. The Commission wants to provide open access to scientific information and the Communication will propose the development of soft law for scientific and research data.

7.6 Research and Innovation: The Commission states its intention to continue promoting and encouraging open data initiatives and innovation through Commission funding programmes. This would involve the launch of research and innovation projects for open data. It will also involve provision of funding for research infrastructures that support open access to research articles and data.

The proposed Directive

7.7 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.[67] 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.

7.8 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.

7.9 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.

The Government's view

7.10 The Minister for the Cabinet Office (Mr Francis Maude) and the Minister of State for Justice (Lord McNally) deposited a joint Explanatory Memorandum on these documents on 12 January 2012.

THE COMMUNICATION

Revised Commission Decision on the re-use of Commission information, December 2011; Work to expand the regime to other European Institutions and Agencies, 2012

7.11 The revised Commission Decision on the re-use of Commission information is a Commission action so there are no policy implications for the UK, although the Government welcomes the application to expand open data to European Institutions and Agencies.

Open data to be taken up in sector based legislative and policy initiatives

7.12 The Government is committed to encouraging all organisations to be as open and transparent as possible, particularly those in receipt of public funding. However, the scope of relevant "data resources" will depend on the specifics of the sector and its activities. Use of these data — whether outcomes data, other management information or data as a product of research, for example — should be considered on a case by case basis.

7.13 The Government will establish a Data Strategy Board and a Public Data Group that will maximise the value of the data from the Met Office, Ordnance Survey, the Land Registry and Companies House, which are all Trading Funds, for long-term economic and social benefit. It will make available free of charge a range of core reference datasets from these bodies to support the development of high-value data businesses. Met Office data has already been made available, a range of Ordnance Survey data has been available since 2010 and data from the Land Registry will be released in March 2012. In addition, Department for Transport data will be made available in April 2012 and the NHS will release data in September 2012.

European open data portals and platforms

Portal giving access to Commission data and data from other EU institutions and agencies, spring 2012

7.14 This is a Commission action and the Government welcomes the efforts by the Commission to open up its data for re-use by European citizens and in doing so becoming more transparent in its administration.

Launch of a pan-European data portal, giving access to datasets from across the EU, spring 2013, following preparatory work with Member States from 2011

7.15 This is a Commission action and the Government welcomes the efforts by the Commission to facilitate access to Member States data through a data portal. The UK has been highly successful and innovative in the area of data portals, data.gov.uk being considered the prime worldwide example for data portals and is open to sharing that knowledge with the Commission, especially in its specification stage, which is crucial for a successful delivery of such a large data portal. There are some key questions that will need to be answered, such as the intended nature of the portal (will it host data or, like data.gov.uk, point to where the data is and simply be a catalogue of data, not a repository?), publication process (how easy will it be for member states to publish?) and duplication, given that the site appears to run the risk of presenting data already available to citizens via the national and regional data portals across the EU.

Co-funding of the European e-service infrastructure for open data through the Connecting Europe Facility 2014-2020

7.16 This is a Commission action and the Government welcomes it.

Open data for science

Communication and Recommendation to the Member States on scientific information

7.17 The Government will await publication of the detail in early 2012 at which point we will consult with the research community and respective central departments.

Expansion of the open access pilot for scientific publications to the whole of Horizon 2020 + pilot with open access to research data

7.18 As stated in the Government's Innovation & Research Strategy for Growth published in December 2011, the Government is committed to ensuring that publicly-funded research in the UK should be freely accessible to all. Government will work with partners to achieve this. An independent working group chaired by Dame Janet Finch has been established to consider, from a UK perspective only, how to improve access to research publications including publicly-funded research. This will make recommendations to Government in 2012.

Research and innovation

Research and innovation projects relevant for open data, in particular through FP7, CIP and Horizon 2020, with funding for research infrastructures supporting open access to research articles and data

7.19 Research and innovation entails a process that could benefit from access to open data. Relationships with government at the local, regional and national level, with international government agencies and with the private sector, ranging from small and medium enterprises to large corporations all involve the use, interpretation and application of data. Hence, innovation networks now have the potential to extend from local engagement to trans-global relationships. The open innovation project at Salford is illustrative of the type of project that could make open use of information to create wider benefits. To facilitate greater access to Research Council-funded research information and related data the UK has announced in its recent "Innovation and Research Strategy" the creation of a "Gateway to Research" which will be designed to also include research funded by others in due course. The Research Councils will work with their partners and users to ensure information is presented in a readily reusable form, using common formats and open standards.

Open data competitions (2012-2013) + improving access to capital for entrepreneurs in this area

7.20 The Government is encouraged by the Commission's interest in open data competitions. The Government continues to work with developers and technology students, organising "hackathons" and Appathons of Government data.

7.21 The Government will also provide up to £10 million over five years, with matched-funding from industry and academia, to establish the world's first Open Data Institute to help business exploit the opportunities created by release of public data.

7.22 Administrative data routinely collected and used by government have huge potential as research resources, not just in their own right but also through their ability to inform, extend and complement other data resources designed for research purposes. Part of the reason greater use is not already made of such data is that it gives rise to a number of complex issues. Doing better is likely to require: an examination of relevant legislation (often specific to individual departments); consideration of conditions of access, data quality and linkage issues, privacy and confidentiality considerations, as well as issues around public awareness and engagement. To take this forward, an Administrative Data Taskforce (ADT) has been established. The ADT brings together around 15 members drawn from relevant government departments and agencies, the Office for National Statistics, funders of research in the medical and social sciences, representatives of the research community and the private sector. It is being chaired by Sir Alan Langlands. Departmental Directors of Analysis in key departments are on the ADT.

THE PROPOSED DIRECTIVE

Impact on UK law

7.23 The Re-use Directive was implemented in the UK on 1 July 2005 by the Re-use of Public Sector Information Regulations. The Re-use Regulations were made by the Minister for the Cabinet Office in exercise of the power in section 2(2) of the European Communities Act 1972. Most, if not all, of the amendments to the Re-use Directive that would be made by the proposed Directive as it stands might be implemented by the making of amendments to the Re-use Regulations. Such amendments might be made using the section 2(2) power.

7.24 The proposal to amend the Re-use Directive may not directly affect existing information access legislation such as the Freedom of Information Act 2000 (FOIA) or the Data Protection Act 1998, in that it proposes that information already made available to the public by the public sector body, through access legislation or other means, must be made available for re-use. The datasets clause in the Protection of Freedoms Bill (currently clause 100) is consistent with what is being proposed by the Commission; provisions in the clause would amend FOIA so that it would require public authorities to make datasets for which they own the copyright and which are accessible under FOIA available for re-use in accordance with the terms of a specified licence. Should the proposal be adopted then further legislation may be required to fully implement the Directive. However, negotiations for the Directive have yet to start and will not commence before June and until EU negotiations commence, Government should not discontinue its course under the Protection of Freedoms Bill to enhance UK citizens' right to data.

Principles for making PSI available for re-use

7.25 Subject to some limitations, the effect of the proposal would make permitting the re-use of PSI that is generally available to the public mandatory, where PSI is subject to copyright which is owned or controlled by a public sector body. This constitutes a limitation to the intellectual property rights held by public sector bodies, and links the right of access to the right to use PSI. The application of the Re-use Directive and the proposal is, however, without prejudice or limitation to individual rights or rights owned by third parties. This is in line with the Government approach to PSI re-use.

7.26 The amended provisions permit public sector bodies to allow re-use either by means of a licence with conditions, as is the case with Crown copyright information in the UK, or without a licence, which is the approach adopted by the European Commission. The UK Government developed and adopted the Open Government Licence in 2010 as the open, default licence for most PSI available free of charge. An increasing number of local authorities and other public sector bodies have adopted the Open Government Licence for their information and data.

7.27 On 29 September 2011, the Department for Communities and Local Government published the Code of Recommended Practice for Local Authorities on Data Transparency.[68] The Code enshrines three principles of transparency; demand-led, openness and timeliness. On openness the Code states that public data should be published in a format and under a licence that allows open re-use, including for commercial and research activities, in order to maximise value to the public. The National Archives will work with Cabinet Office, Communities and Local Government, the Department of Health and the Local Government Association to continue to promote open and public data policy aims.

Charging by public sector bodies within the scope of Re-use Directive

7.28 The proposal would reinforce marginal cost as the default position for charging for re-use with scope for public sector bodies to charge above marginal cost in exceptional cases, in particular where they generate a substantial part of their operating costs from the exploitation of intellectual property rights, subject to objective, transparent and verifiable criteria.

7.29 In the public interest, much information about public services may be made available free or at low cost. However a number of public sector bodies supply information for which charges are made. In particular, public sector bodies can charge for supplying documents which recipients intend to re-use. The norm in such circumstances is for raw data supplied by public sector bodies to be licensed and charged at marginal cost. For value-added data, the norm is to charge at full cost plus an appropriate rate of return. The National Archives currently approves business cases based on objective, transparent and verifiable criteria for those Crown bodies that wish to charge above marginal cost.

7.30 Some parts of the public sector within the UK, called Trading Funds, are required to achieve a return on average capital employed each year, including for some from the licensing and sale of the documents they collect, collate and add value to. Accordingly the norm for all information supplied by Trading Funds which recipients intend to re-use is to charge at full cost plus an appropriate rate of return. There are very real concerns that if Trading Funds' ability to do this were to be removed the quality and value of the information resource could itself, over time, become seriously compromised. Moreover the opportunity to trade at a reasonable profit (whilst ensuring that the raw information is available on the same conditions to private sector competitors) is an important one for the UK.

7.31 The Government will work with stakeholders to ensure any proposals are subject to full consideration and agreement across Government.

Expanding the scope of the Re-use Directive to include libraries, archives and museums and university libraries

7.32 The proposal extends the scope of the Re-use Directive to include public sector libraries (including university libraries), museums and archives. However, these organisations will have the option of not allowing re-use and will be able to charge above marginal cost for the re-use of their information where necessary. The Re-use Directive requires most public sector bodies to provide details of copyright ownership, where known, if the public sector body does not own the copyright itself. The proposal to amend the Re-use Directive will not require archives, libraries and museums to comply with this condition due to the particular nature of their holdings, which comprise of large quantities of information owned by third parties. The Government takes the view that extending the scope of the Re-use Directive to include archives libraries and museums may have practical implications, particularly arising from the fact that these bodies typically hold substantial quantities of information in which the copyright is owned by third parties. Nevertheless, the Government recognises the steps taken by the Commission to mitigate the potential administrative burdens which would otherwise have faced these sectors. The practical issues will need to be assessed carefully during negotiations.

Independent authority with regulatory powers

7.33 The proposal will require Member States to make provision so that re-users can seek redress for failure to make information available for re-use from an independent authority with regulatory powers. The Office of Public Sector Information, part of The National Archives, was established under the Re-use Regulations to investigate complaints and to notify the complainant and the public sector body concerned of its recommendation. The National Archives also fulfils a wider regulatory role in the UK for Crown bodies as the Controller of Her Majesty's Stationery Office, an official in The National Archives, manages Crown copyright on behalf of Her Majesty the Queen via Letters Patent and operates the Information Fair Trader Scheme (IFTS), which sets best practice standards for government information traders. Any public body may apply to become IFTS accredited. IFTS accreditation is compulsory for Crown bodies that have a full delegation of licensing authority from the Controller of Her Majesty's Stationery Office. An extension of regulatory powers to the current framework would strengthen this approach and encourage more open and transparent government data across the wider public sector. The proposal validates the UK approach and will improve regulation in other Member States, so for these reasons it is to be welcomed.

Revised definition of 'public task'

7.34 The existing Directive applies only to information that falls within the scope of an organisation's public task. The proposal features a tightening up of the definition of public task, limiting it to tasks defined by law or other binding rules of the Member State. The existing legislation also includes reference to 'common administrative practices'. This will mean that many UK public sector bodies will need to reconsider the extent of their public task in respect of PSI within the scope of the Re-use Directive, which has potential implications charging decisions. The practical issues will need to be assessed carefully during negotiations.

Impact Assessment

7.35 The proposal to amend the Re-use Directive has implications for the accountability, governance and resourcing of public sector bodies which require fuller examination as the proposal to amend the Re-use Directive moves towards finalisation. Particular consideration needs to be given to the impact on local authorities, museums, libraries and archives and the Devolved Administrations. The Government will undertake an impact assessment as the impacts and benefits of the Commission's proposed changes to the Re-use Directive become clearer as negotiations progress.

Conclusion

7.36 We thank the Government for the thoroughness of its Explanatory Memorandum. We have no questions to ask at this stage. We clear the Communication from scrutiny, but keep the proposal to revise the re-use Directive under scrutiny pending an update from the Government when the negotiations are nearing completion.





67   See its Communication COM(09) 212. Back

68   See http://www.communities.gov.uk/publications/localgovernment/transparencycode. Back


 
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Prepared 8 March 2012