16 Open data re-use of public
sector information |
+ ADDs 1-2
|Draft Directive amending Directive 2003/98/EC on re-use of public sector information
|Legal base||Article 114 TFEU; co-decision; QMV
|Departments||Cabinet Office and Justice
|Basis of consideration||Minister's letters of 28 March and 30 April 2013
|Previous Committee Reports||HC 86-xvi (2012-13), chapter 5 (24 October 2012); HC 428-lii (2010-12), chapter 7 (29 February 2012)
|Discussion in Council||Date to be agreed
|Committee's assessment||Legally important
16.1 The proposal forms part of the EU 2020 strategy to promote
growth in Europe's economies. The proposed Directive seeks to
unlock the economic potential of public sector information through
amending Directive 2003/98/EC on the re-use of public sector information
(the PSI Directive), which established a minimum set of rules
governing its re-use at European level. The Commission pointed
to a lack of awareness and inconsistency of approach across Member
States with respect to the 2003 Directive, which has hampered
the creation of cross-border information products and services.
16.2 The key features of the proposal to amend
the Directive are as follows:
- to bring museums, libraries
and archives (including university libraries) within scope of
- to establish the principle that generally accessible
information should be made available for re-use;
- to provide that charges for re-use should in
general be limited to marginal costs, with some notable exceptions
(such as museums, libraries and archives); and
- to provide a redress mechanism for non-compliance
through an independent authority with binding decisions.
16.3 The Commission's proposal was generally
welcomed by the Government and is broadly in keeping with the
Government's policy and innovation in the areas of re-use, open
data and transparency. Many of the principles outlined in the
proposal are already embedded within the open data and public
sector information landscape in the UK.
16.4 The key issues that the UK wished to address
during the course of the negotiations were as follows: the principles
for making public sector information available for re-use; charging
by public sector bodies within the scope of the Directive; the
expansion of the scope to museums, libraries and archives (including
university libraries); the role of the independent authority with
regulatory powers; and the revised definition of public task.
16.5 We reported on the proposal in detail in
February and October of last year.
The Minister's letter of 28 March 2013
16.6 The Parliamentary Under-Secretary of State
for Justice (Helen Grant), writes to update us on the developments
in the negotiation of this proposal.
16.7 The Trialogue negotiations involving the
European Parliament (EP) began in December 2012, with the third
Trialogue scheduled for the end of March. During the first Trialogue,
the issues fell into three broad categories: first those where
the EP and the Council's preliminary positions were identical
and required no further discussion; second those where the EP
and Council agreed in principle but needed to find common language
and terminology; and third those cases where the EP and Council
had diverging views. The first two categories of issues have been
discussed and resolved. This included the resolution for the principles
for making public sector information available for re-use and
the revised definition of public task. For the third category
the outstanding issues related to the role of an impartial review
body (the "independent authority" in the original proposal),
rules on charging and the rules on exclusive agreements. The Minister
provides further detail on each of these issues.
PRINCIPLES FOR MAKING PUBLIC SECTOR INFORMATION AVAILABLE
16.8 The move towards making accessible information
available for re-use is consistent with UK emerging policies on
open data and transparency. The Government is satisfied that
the latest text makes it clear that only accessible information
falls within scope. The Directive therefore excludes information
that is exempt under access legislation, and also information
in which the intellectual property is owned by a third party.
The latter is a key issue for archives, libraries and museums
as these bodies hold significant quantities of content subject
to third party rights.
REVISED DEFINITION OF PUBLIC TASK
16.9 The term "public task" is significant
in the context of the PSI Directive because it defines whether
certain information falls within the scope of the Directive.
In negotiations, the UK argued against the definition being limited
to what is established in law or other binding rules only, and
for moves to remove common administrative practice from the definition.
This is because the roles and responsibilities of many UK public
sector bodies are not defined legally in this way. The UK has
been successful in reinstating common administrative practice
to the definition, with the possibility of review from an independent
body other than the public sector body in question.
CHARGING BY PUBLIC SECTOR BODIES WITHIN THE SCOPE
OF THE DIRECTIVE
16.10 The question of charging has proved to
be the most contentious and challenging aspect of the negotiations.
Whilst the Government could accept that marginal cost pricing
should be the default charging mechanism it was essential that
sufficient flexibility was retained to ensure that charges could
be made for re-use where appropriate. This was particularly the
case for public sector bodies, such as government trading funds,
which derive a substantial amount of their income from making
their information and data available for re-use. The same applies
to archives, libraries and museums. The Council, EP and Commission
recognise and agree that such bodies should be able to charge
above marginal costs and the text reflects this.
16.11 The UK has also argued strongly in favour
of other public sector bodies being able to charge above marginal
cost for specific activities or projects giving rise to public
sector information where it is appropriate and necessary to do
so. This applies in cases where the public sector body does not
generate a substantial part of their overall revenue from public
sector information but still needs to charge above marginal cost
in order to make the information available for re-use. There may
be further challenge on this particular exemption from marginal
cost. This is the subject of discussions in the third trialogue.
The Minister will update us on the outcome following these discussions.
EXPANSION OF THE SCOPE TO MUSEUMS, LIBRARIES AND
ARCHIVES (INCLUDING UNIVERSITY LIBRARIES)
16.12 The views of cultural sector bodies and
representational groups have informed the UK negotiating position.
The main issues have focussed on charging and the granting of
exclusive rights, especially where the digitisation of cultural
resources has been involved. The current text as agreed in Council
meets the UK concerns satisfactorily around charging for museums,
libraries and archives. Details regarding the duration of exclusive
rights, particularly for digitisation of cultural resources, will
be discussed at the third Trialogue. Several parties have called
for a longer duration than the seven years in the text, including
ROLE OF THE INDEPENDENT AUTHORITY WITH REGULATORY
16.13 The proposed amended Directive makes provision
for Member States to establish an impartial review body that can
consider complaints and forms of redress with binding decisions.
The original proposal described this body as the "independent
authority" but many Member States wished to avoid the unnecessary
burden of establishing a separate body. Some Member States envisaged
these activities being handled via a judicial process. The current
text is open to the adoption of a proportionate regulatory model
such as the one already in operation in the UK.
16.14 Subject to discussions in the final stages
of negotiation it is anticipated that the Directive will go forward
for the European Parliament plenary vote on 11 June. When the
Government receives the final text of the proposal, the Minister
will write again to update the Committee and seek clearance.
The Minister's letter of 30 April 2013
16.15 The Minister writes again, as promised,
to update us on the draft text agreed between the EP and the Council,
to highlight how the text meets the Government's aims for the
negotiations, and to seek clearance from scrutiny. Subject to
obtaining clearance, her aim would be for the Government to signal
the UK's agreement to adoption of this text.
CHARGING BY PUBLIC SECTOR BODIES WITHIN THE SCOPE
OF THE DIRECTIVE
16.16 The compromise text retains the UK's flexible
approach to charging and keeps within the spirit of the open data
and transparency agenda. This is a crucial balance. The Directive
establishes a principle of marginal cost as the general default
for allowing re-use of public sector information. However,
there are appropriate safeguards for trading funds and other public
sector bodies that are required to generate a substantial part
of their costs for the information. The Directive also recognises
the need for a flexible approach on charging for archives, libraries
16.17 Significantly, the text also enables other
public sector bodies (for example, those that are not trading
funds or cultural bodies) to be able to charge above marginal
cost for the collection, production, reproduction and dissemination
of public sector information, where appropriate, within a proportionate
check and balance system. This system will reflect that operated
at present for central government under Crown copyright management
and the UK Government Licensing Framework.
PROHIBITION OF EXCLUSIVE ARRANGEMENTS AND THE EXPANSION
OF SCOPE TO MUSEUMS, LIBRARIES (INCLUDING UNIVERSITY LIBRARIES)
AND ARCHIVES (ARTICLE 11)
16.18 This is a key issue for museums, libraries
(including university libraries) and archives, particularly in
the context of digitisation projects. The UK has been successful
in negotiating and achieving the general ten year period for exclusive
arrangements where necessary. Therefore organisations are permitted
to enter into exclusive arrangements, for example, on costly digitisation
projects, provided that the term of exclusivity does not exceed
ROLE OF THE INDEPENDENT AUTHORITY WITH REGULATORY
16.19 The Directive makes provisions for Members
States to establish an "impartial review body" which
can consider complaints and can make binding decisions. This change
in wording from 'independent authority' is significant in that
it avoids the unnecessary burden of establishing a separate body
or moving away from the proportionate regulatory model already
in operation in the UK.
16.20 The reference to the impartial review body's
decisions being binding reflects the strong push from the
Commission and other Member States to provide an enforcement mechanism.
This will strengthen the right of re-users to seek to enforce
a favourable decision of the review body. The outcome is
a positive one for the UK in that the Government can adapt the
existing regulatory framework without having to establish a new
national competition authority or national judicial authority,
to investigate complaints.
16.21 The Presidency asked the Committee of Permanent
Representatives (COREPER) to signal their agreement to the final
compromise text on 10 April 2013. The Directive is scheduled for
a plenary vote in the European Parliament on 11 June 2013. As
the Transport, Telecommunications and Energy Council meets 6-7
and 10 June 2013, the Directive is likely to go to another Council
for adoption after the European Parliament plenary vote. It is
as yet unclear which Council meeting this may be.
16.22 We thank the Minister for her two letters
both are excellent examples to other Departments of how
to keep the Committee informed of developments in Trialogue negotiations
before seeking clearance on the outcome.
16.23 We note the Government's success in
negotiations and welcome, in particular, the outcome on charging,
exclusive arrangements and a review body which will not require
the establishment of a new institution.
16.24 We have no further questions to ask
and now clear the proposal from scrutiny.