Open data as the standard for Europe? A critical analysis of the European Commission's proposal to amend the PSI DirectiveKatleen Janssen , Sara Hugelier 
Cite as: Janssen, K. and Hugelier S., "Open data as the standard for Europe? A critical analysis of the European Commission's proposal to amend the PSI Directive", European Journal of Law and Technology, Vol. 4, No. 3, 2013.
AbstractIn December 2011, the European Commission adopted its Open Data Strategy, aiming to make open data the standard in the Member States of the European Union. The strategy included a proposal to revise the 2003 Directive on the re-use of public sector information (PSI directive). This proposal has been discussed in a trialogue procedure and the Council's Committee of Permanent Representatives has adopted a final text on the 10th of April. This paper critically analyses the proposed amendments of the European Commission, the Parliament and the Council, against the background of the policy and practice experiences relating to PSI in the Member States and the recent developments relating to open data. It assesses to which extent the possible changes to the directive will impact open data policy and practice and whether the legal barriers that are currently in place will actually be removed.
Over the last few years, one could say that a true open data ecosystem has been developing. Led by the United Kingdom and the United States, many countries, regions, and local authorities have started to make their data broadly available via portals and websites for any kind of use the public wants to make of it. At the level of the European Union, the European Commission also adopted an Open Data Strategy in December 2011, aiming to make open data the standard in the Member States of the European Union (European Commission, 2011).
While the European Commission seems only recently to have picked up the topic of open data, it has actually been striving for a greater availability of data held by the public sector for over 20 years, by means of its policy on the re-use of public sector information (author, 2003). In 2003, this led to the adoption of the Directive on the re-use of public sector information (PSI Directive), which intended to stimulate the European content market by harmonising the rules for making PSI available and creating a level playing field on the market. Hence, this Directive already provided a first legal cornerstone for the opening up of government data (even though the connection between PSI and open data was only made later, cf. infra). However, the PSI Directive only had a limited impact, and the Open Data Strategy included a proposal to revise it (European Commission, 2011). The Commission deemed this revision necessary because the 2009 and 2011 reviews of the PSI Directive made it clear that more binding rules were necessary to create a true European information market based on PSI (European Commission, 2009 and 2011). In addition, the growth of the open data movement since 2009 provided an opportunity for the Commission to strengthen its PSI policy by linking it to this much more fashionable and popular concept.
The main elements of the proposal for amending the PSI Directive include the introduction of a general right of re-use of PSI, the extension of the field of application to cultural institutions, and the adoption of marginal cost charging as the default charging policy. The proposal was discussed in the Council and the European Parliament in the course of 2012, and it was decided to create a trialogue between the institutions to avoid the long process of a first and second reading in the Parliament. On 10 April 2013, the European Commission announced the EU Committee of Member States' Permanent Representatives (COREPER) agreement with the revisions of the Directive (European Commission, 2013). On the 25th of April, the European Parliament's Committee on Industry, Research and Energy votes on the text, and the plenary vote is expected on the 11th of June. As the text was negotiated in a trialogue, it is expected that these votes will only be a formality. Therefore, this Article is based on the text adopted by the COREPER (Council, 2013).
While the Commission proposal intends to strengthen the rights of PSI re-users, its impact on open data may only be limited, due to the higher demands the open data movement puts on data held by the public sector, e.g. regarding its format, possible charges and use conditions (cf. infra). This paper provides a first critical analysis of the proposed amendments to the PSI Directive and assesses to which extent the possible changes to the Directive will impact the open data policy and practice in the Member States. After a short sketch of the background and history of the PSI Directive and the development of open data, we examine the main changes to the Directive and their possible effect. Finally, we conclude with some views on the next steps that need to be taken in the course of the implementation of the new Directive and the further embedding of open data in the public sector.
2.1 The PSI Directive
On 17 November 2003, a long process of discussions on the appropriate approach to re-use of public sector information on the European level, culminated into the formal adoption of the PSI Directive. The Directive was supposed to be implemented by 1 July 2005, but very few countries made the deadline. Almost three years and a number of infringement proceedings later, the Commission was notified by all 27 Member States that the Directive was finally fully implemented (author, 2010 and European Commission, 2006).
The PSI Directive provided a common legislative framework to a previously unregulated European public sector information market on the basis of two key pillars: transparency and fair competition (Recitals 1, 5 & 6 PSI Directive). One of the principal aims of this legal framework was to unlock the economic potential of government-owned data, currently the single largest source of information in Europe (European Commission, 2009). By making this data available for commercial or non-commercial re-use, the public sector would enable European companies to exploit the fullest potential of PSI which in turn contributes to economic growth, innovation and job creation.
The Directive aimed to harmonise the basic conditions for re-use, as well as remove the major barriers to re-use in the internal market such as discriminatory practices, monopoly markets and lack of transparency. In this context, the PSI framework established a minimum set of rules on key issues such as non-discrimination, charging, exclusive arrangements, licensing and tools for discovery of public documents.
2.2 The review of the PSI Directive
Since this first set of rules on re-use of government-held data was created, the amount of worldwide data has exploded and technological evolutions have sped up exponentially. The 2003 framework could no longer keep pace with these rapid changes. Moreover, although considerable progress in the field of PSI re-use was attained, some major barriers to the cross-border use of public sector information remained in place. The European Commission's review of the PSI Directive in 2009 showed that there were still some key issues to be tackled in order for the Member States to realize the full potential of re-use of PSI. On the one hand, 'practical issues were hindering the full realization of PSI re-use', such as a lack of transparency, complicated licensing procedures and prohibitive fees. On the other hand, 'many public sector bodies were only lukewarm to the idea of commercial re-use of government held data' (European Commission, 2009). However, it was concluded that this review could not yet provide sufficient information to fully assess the impact of the PSI Directive, especially in light of the fact that many Member States had only just implemented this Directive in 2007 or 2008.
A second review was planned for 2012. However, given the large economic importance of unlocking government-held data and possibly making open data the standard in the EU, the review was frontloaded to 2011, also to fit in the European Commission's Digital Agenda for Europe (European Commission, 2010). In the light of this review, a wide-ranged public consultation was carried out in 2010, including an online questionnaire which received 598 replies from all interested parties (European Commission, 2011b). An overwhelming 90% of these stakeholder replies confirmed that the Commission urgently had to take further action towards opening up data resources and facilitating re-use of these resources, including but not limited to amending several provisions of the 2003 Directive. Next to the public consultation, a number of studies also showed the untapped potential of PSI (e.g. Vickery, G., 2011, De Vries, M. et al., 2011, Clapton, G. et al., 2011). Lastly, an Impact Assessment was also prepared, focusing on five key concerns: (1) insufficient transparency, (2) scope of the Directive, (3) high and anti-competitive charges, (4) implementation and application and (5) cumbersome and lengthy redress proceedings (European Commission, 2011c). In light of this assessment it was decided that legislative amendments would be combined with soft law measures. This approach would ensure the convergence of national re-use friendly regulatory approaches throughout the internal market, thereby enhancing legal certainty, increasing incentives and lowering barriers to PSI re-use.
The proposal that we are assessing today, is the result of this second review. The proposal aims to tackle key issues which continue to limit further progress such as the attempts of many public sector bodies to maximize cost recovery as well as the general negative mind-set regarding the commercial re-use of PSI (European Commission, 2011a).
2.3 In the meantime: open data
As was indicated in the previous paragraphs, since its adoption in 2003, the PSI Directive only had a limited impact on the availability of PSI for re-use by the private sector. However, a few years later a process towards opening up government information started from a different angle: a diverse community of civil society advocates, developers, entrepreneurs, journalists and academics started to put pressure on government to make its data available in machine-readable formats (Hogge, B., 2010, author, 2012, Access Info, 2010, Halonen, A., 2012). These open government data proponents strove (and still strive) for the availability of data held by government bodies in a machine-readable format for any kind of use (both commercial and non-commercial), free of charge or against marginal cost. Unlike the PSI community, open government data activists base their demands for data mostly on transparency and accountability arguments, and focus less on economic growth or government data as an economic resource (although this still plays a role, see Halonen, A., 2012, Gigler et al., 2011, Huijboom, N. et al., 2011).
While the United Kingdom and the United States can be seen as the frontrunners in opening up government data, other national, regional or local initiatives have also been gaining momentum.  Over 100 open data portals - some including more data than others - have been set up throughout the European Union (Zijlstra, T., 2013). Policy makers and public authorities are starting to embrace the concept and are increasingly willing to engage in debates with citizens, organisations and companies that want to use their data. 1000s of websites, services, apps, and other products have been created with open data. For the most part, this has all happened without any reference to the PSI Directive or to the concept of re-use of PSI. To a certain extent, this may explain its success (author, 2011a). By not relying on the PSI Directive, the open government data movement could avoid any negative connotation connected to the commercial re-users 'taking advantage' of the taxpayers' investments in public sector data. Policymakers and public bodies appeared to be much more sensitive to accountability and transparency demands than to private sector complaints about possible re-use.
Over the last two or three years, the open government data movement and the PSI industry have started to connect and discover each other's drivers, arguments, successes and weaknesses. However, the availability of open data to a very large extent still depends on policy agendas and the goodwill of public bodies, and in most countries is not laid down in any legislation. Hence, the European Commission saw its opportunity to link the success of open government data to its intended changes to the PSI Directive. Slowly but surely it stopped talking about PSI, and started referring only to open data in its communications. In this way it hoped to gain more support from the Member States that had already adopted an open data policy, particularly in its battle to create a proper 'right of re-use' and to introduce marginal cost charging as the default charging mechanism (cf. infra). Adoption of these principles would provide the legislative backbone to national open data developments and at the same time stimulate the European content market. However, the question can be asked in how far the Commission's proposal for amendment of the PSI Directive, and particularly the results of the debates in the Council and the European Parliament, are actually improving the open data ecosystem. In the next paragraphs, we will set out the most important changes of the Directive and their impact on the availability of open public sector data in the European Union.
3 The amendment of the PSI Directive
The Commission's proposal for a new Directive is part of the Digital Agenda, one of the main flagship initiatives of the Europe 2020 Strategy. The aim of the Digital Agenda is to 'turn Europe into a smart, sustainable and inclusive economy delivering high levels of employment, productivity and social cohesion' (European Commission, 2010). Via the Digital Agenda, the Commission hopes to catalyse the full and effective exploitation of the digital economy by all European citizens and businesses. In this context, the European Commission adopted the Open Data Strategy, attempting to make open data the standard in the European Union. Next to plans for mobilising financial instruments in support of open data and increasing cross-border coordination and experience sharing, the Open Data Strategy's main result should be the revision of the PSI Directive.
The Council's discussions did not start from the Commission proposal itself, but from a compromise text drawn up by the Danish Presidency, which caused quite a stir among civil society (see e.g. Ruiz J., 2012). After the Cyprus Presidency took over in July 2012, it was decided to accelerate the process by creating a trialogue. While this will indeed allow a final text of the Directive to be adopted by the summer of 2013, it has also increased the lack of transparency regarding the negotiation process of the Directive (which can already hardly be called transparent even though it follows the standard procedure of separate Council debates and readings in the Parliament). Therefore, while for some amendments the arguments and motivations are clear, the reasons for the adoption of some other changes will remain unknown).
3.2 The main changes
In this section, the main changes to the PSI Directive adopted by the COREPER are addressed. We do not provide an exhaustive overview of all amendments, but rather discuss the elements of the PSI Directive that were the subject of most discussion throughout the years and that can be expected to have the most impact on the open data ecosystem in the European Union. This includes the relationship with personal data, the inclusion of cultural institutions in the field of application, the introduction of a right to re-use, the lowering of the charges, the means of redress, and the rules for exclusive arrangements. We will address these topics following the structure of the PSI Directive.
3.2.1 Subject matter and scope
Next to the definition of the public task (see author, 2010), the main questions relating to the scope of the PSI Directive have been about the exclusion of particular institutions (including cultural institutions, scientific and educational establishment and public broadcasters) on the one hand, and the relationship with the protection of intellectual property rights and personal data on the other hand. The amendments to the Directive try to tackle both sets of questions.
22.214.171.124 Protection of personal data
Under the current Directive, PSI can be reused (if it is allowed by the Member States and/or public sector bodies, cf. infra) for commercial and non-commercial purposes, yet in a way that does not affect 'the level of protection of individuals with regard to the processing of personal data' (Article 1 (4)PSI Directive).
With this Article the PSI Directive makes it clear that in theory, when personal data is involved, both the PSI Directive as well as the 1995 Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive) will apply. A considerable part of the data resources of the public sector includes personal data, e.g. information regarding company directors, commercial registers, land registers and vehicle registration. In this context, there are increasing concerns regarding the possible re-use of these data and their level of protection. The tension between both policy spheres has revealed a number of difficulties when applying both Directives and has led to differing national implementations of the PSI provisions. Some Member States, such as Belgium and the Netherlands, impose several strict precautionary measures such as making all personal data anonymous (Belgium) or omitting all personal data before allowing re-use (Netherlands) (Dos Santos, C. et al., 2012). This strict approach eliminates a substantial part of PSI data available for re-use. In other countries, personal data is not explicitly excluded from re-use in the PSI legislation, and it is left to the privacy legislation to regulate possible use of public sector data. While the latter solution may for instance allow re-use for research purposes and forbid any re-use for commercial purposes, the former approach precludes any re-use, possibly also including perfectly legitimate types of re-use.
The current legal framework was considered insufficient to deal with the possible balancing of interests (European Data Protection Supervisor, 2012 and Graux, H., 2011). Particularly the European Parliament Committees proposed changes to the Directive to include more protection for personal data. The amended Article 1.2 (caaa) will read:
This Directive shall not apply to>
(caaa) documents access to which is excluded or restricted by virtue of the access regimes on the grounds of protection of personal data, and parts of documents accessible by virtue of those regimes which contain personal data the re-use of which has been defined by law as being incompatible with law concerning the protection of individuals with regard to the processing of personal data;
By specifically mentioning 'the protection of personal data', it is thought that the protection of personal data should be better guaranteed. However, two problems still remain. First, access legislation generally does not restrict access based on the protection of personal data, but rather on the protection of the personal sphere or the privacy of the individual, which does not have the same scope. In addition, the question still remains how a balance should be struck between both policy spheres, without harming the protection of personal data, but also without unnecessarily restricting legitimate forms of re-use?
It is a pity that the new Directive does not include any references to the need for a more 'proactive' approach in this matter, as suggested by many scholars and experts (European Data Protection Supervisor, 2012; Pagallo, U. et al, 2012 and O'Hara, K., 2011). Would it not be more efficient if PSI resources are structured in such a way that institutions can assess and make clear to PSI re-users to which extent and under which conditions re-use may take place? Should multiple purposes of re-use be distinguished in order to open up different sorts of PSI accordingly? Via a proactive approach where institutions categorize the data and ascertain conditions to the data subjects, the public sector bodies might have the tools they need to ensure privacy. The new Directive could have given a first push towards such an approach by including a reference to soft law measures on the topic, such as guidelines or the creation of technological tools. However, this of course begs the question whether this again would lead to different solutions in different Member States and/or on different levels in public sector bodies? What is certainly clear now, is that not much will really change on this matter with the proposed PSI Directive. Hence, the debate in the open data community on the relationship with privacy and personal data will have to develop further within this community, without any additional essential legal guidelines at the European level. Of course, it remains to be seen what the future regulation on data protection might bring in this perspective (European Commission, 2012).
126.96.36.199 University libraries, museums, libraries and archives
The main change to the scope of the Directive is its extension to documents held by (university) libraries, museums and archives. Cultural, educational and research institutions hold an enormous amount of information on a daily basis, just like any other public sector entity. Locking away these PSI resources, currently via an exemption in Article 1.2(e) and (f), ultimately diverges from the whole rationale of the Directive.
When Member States and stakeholders were consulted, both during the first and the second review, respondents were mostly divided on the question of the inclusion of these institutions in the new Directive (European Commission, 2009 and 2011b). The inclusion of this data in the scope of the Directive also generated a heated debate in the Council. There was definitely some Member State support for the widened scope, while several other delegations and stakeholders expressed their concerns on the broadening of the scope.
Several arguments can be made against the inclusion of cultural institutions. First, the managing of requests for re-use are said to create a high administrative burden and significant additional expenditure. Second, a large part of the content held by cultural institutions contains third party copyrights, entailing an administrative burden that comes with differentiating between content protected by third party copyrights and public domain content when complying with the re-use requests. Third, opponents of the inclusion argue that these institutions have a 'particular position' as carriers of culture and knowledge and warn for their possible financial demise if they would be prevented from charging for their cultural information. Finally, concerns rose about the large number of documents held by public archives that contain personal data. (Bogataj Jancic, M. et al., 2012 and Clapton, G. et al., 2011)
Supporters of including these institutions into the scope of the Directive reiterate that the ultimate benefits resulting from the accessibility of their PSI will outweigh the administrative burdens on the institutions in question. In the context of the review a cost-benefit analysis was performed by the Commission (European Commission, 2011 and Clapton, G. et al., 2011), which also showed the very large potential benefits that could be derived from inclusion. First, the inclusion of educational, research and cultural institutions in the Directive would not affect intellectual property or privacy/personal data right owner's interests, since the Directive contains other Articles devoted to these issues. Second, there was no reason to suspect that the administrative burden would be more troublesome to bear for cultural institutions than for the vast majority of other public sector bodies. Third, there was already some, albeit limited, evidence on the active re-use of PSI provided by museums, archives and libraries (Bogataj Jancic, M. et al., 2012 and European Commission, 2011).
The withdrawal of the exemption for these institutions in the proposed Directive, and the precise wording of the new Articles clearly constitute the result of an on-going political compromise. Although positive in principle - it is intended to encourage museums, archives and libraries to proactively share their information (metadata and content) -, in practice the amendments will only have a very limited impact.
One reason for this is the wording of Recital 7:
"… documents on which third parties hold intellectual property rights should be excluded from the scope of Directive 2003/98/EC. If a third party was the initial owner of a document held by libraries (including university libraries), museums and archives that is still protected by intellectual property rights, that document should, for the purpose of this Directive, be considered as a document for which third parties hold intellectual property rights."
The vast majority of the documents cultural institutions hold, fall under this exemption. Most works are bought or commissioned, and thus first owned by others. Works which are donated also have a first owner. One could wonder which works are left: will this extension only cover internally generated documents? The broad approach in Recital 7 seems to lead to an extremely limited scope of the proposed Directive (Bogataj Jancic, M. et al., 2012).
Next, libraries, museums and archives will still have the choice whether to allow re-use of their documents or not. Hence, there is no general right of re-use for these documents (cf. infra). Moreover, the new Directive includes specific provisions which allow museums, archives and libraries to charge higher fees for the re-use of cultural PSI, and allows them to conclude exclusive agreements for the digitisation of their material. These issues will also be addressed later in this paper. In summary, although cultural institutions will fall within the ambit of the Directive, it is clear that they will still be able to support themselves through the licensing of material for re-use (Collections Trust, 2012).
3.2.2 General principle
The most important change to the Directive is the introduction of a right to re-use. The current Article 3 of the PSI Directive does not contain an obligation for the Member States or the public sector bodies to allow re-use of public sector documents. Only in case they do decide to allow PSI re-use, they have to provide these data both for commercial and non-commercial purposes in accordance with the PSI Directive. However, the initial choice whether to allow re-use or not is left to them.
One of the key policy objectives of the Commission's proposal (based on one of the main topics during the Public Consultation), was the introduction of the general principle that all public information that is not explicitly covered by one of the exceptions is reusable for both commercial and non-commercial purposes'. Consequently, this amendment to Article 3(1) of the PSI Directive entails that 'existing documents' held by public sector bodies of the Member States shall effectively be 'reusable for commercial and non-commercial purposes', hence creating a full right to re-use.
As already indicated earlier, Article 3.2 of the PSI proposal constitutes the exception to this rule. For documents for which libraries (including university libraries), museums and archives have intellectual property rights, the choice to allow re-use is still left to the Member States or the institutions. If they decide to allow re-use, then they must adhere to the conditions set out in the Directive and these documents shall be made re-usable for both commercial and non-commercial purposes.
The creation of a 'full right to re-use' should indeed improve the re-use of PSI, enforcing the development of a Union-wide PSI market. However, from an open data perspective this is not yet sufficient, as the right to re-use a document still depends on a request made by the re-user. While the Member States are encouraged to make practical arrangements for increasing the accessibility of their data (cf. infra), they are not obliged to proactively make the data available. While ideally this would have been the case, the Commission was not in any position to propose this, as such proactive publication should be based on freedom of information legislation and access to public sector documents, which remains a competence of the Member States.
3.2.3 Means of redress
A recurring complaint of the private sector relating to the PSI Directive was its 'lack of teeth'. The absence of a standardised efficient redress mechanism, coupled with a lack of sanctions for non-compliance, deters re-users from engaging in cross-border re-use projects (European Commission 2011a; European Commission 2010). The uncertainty over which authority is responsible for deciding on re-use, together with the excessive length and complexity of administrative proceedings and judicial review, discourage re-users before they even start (Valero-Torrejos, J. et al., 2012).
The new Directive tries to remedy this by including in Article 4 that the means of redress have to include the possibility of review by an impartial body with the appropriate expertise, such as the national competition authority, the national access to documents authority or the national judicial authority, whose decisions are binding upon the public sector body concerned (Council, 2013). Whatever authority is made competent, in any case it should have the needed expertise and the process should be swift. In many countries, such a review by an impartial body already exists, e.g. the Slovenian Information Commissioner, the United Kingdom's National Archives, or the Belgian appellate body for access to and re-use of public sector documents. No EU Member State has assigned the competence for reviewing decisions on re-use to a competition authority, although in some cases their expertise on antitrust regulation and practice would be very useful. The composition, structure and working procedures of these review bodies differ considerably, making some more 'impartial' than others. For instance, the Flemish appellate body consists completely of public servants, without any representative from the private sector or civil society. This runs the risk of the public sector being both a party and a judge in a particular case.
Originally, the Commission wanted to avoid such situations by suggesting the instalment of a (new) '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' (European Commission 2011a). In the Commission's vision, this independent authority would combine ex post review competences with ex ante approval of the criteria for charges above marginal cost (cf. infra). This met with considerable protest from the Member States delegations in the Council, the European Parliament ITRE Committee, the Committee of Regions, and the European Economic and Social Committee for several reasons. Imposing the establishment of an independent authority was considered as disproportionate, contrary to the subsidiarity principle, contrary to Member States' efforts to reduce bureaucracy and consolidate budgets, and the undesirable combination of ex ante and ex post competences in one body. (Council 2012a; Council 2012b; ITRE, 2012; Committee of Regions 2012, European Economic and Social Committee 2012). In short, existing bodies could just as well do the job.
There may also be other problems: the existence of an independent agency as such does not guarantee sufficient expertise for deciding on a complicated matter such as PSI; and its competence may constantly collide with that of other agencies or authorities, requiring extensive procedures for cooperation or mutual advice (Valero-Torrejos, J. et al, 2012)). Another question that can also be asked is whether the redress procedure should really be the priority. Shouldn't the focus be on creating a working legal framework and making sure that it is respected? (Valero-Torrejos, J. et al, 2012). However, the fact remains that the private sector has often complained about the lack of efficient redress - if it keeps them from creating applications and services with PSI, there is no use in having a new PSI Directive.
The new provisions on the means of redress also add yet another derogation to the general rules to appease the cultural institutions. Generally, when re-use of PSI is not allowed, based on the fact that a third party holds the intellectual property rights, the public sector body has to include a reference to the right holder or alternatively, the licensor from which the material has been obtained (Article 4.3). The new provision exempts libraries, museums and archives from the obligation to include such a reference. This goes back to the aforementioned concern of the Council, stating that the proposal should abstain from imposing heavy administrative and financial burdens on these institutions.
Article 5 of the PSI Directive is related to the formats the PSI should be available in. During the public consultation it became clear that machine-readability was one of the key concerns of the majority of the respondents (European Commission, 2011b). Under the current Directive, public sector bodies do not have any obligation to make their documents available under a particular format, only in whatever pre-existing format they have and where possible and appropriate by 'electronic means'. Under the new regime, there is still no obligation to create documents in or convert documents to a particular format. It would be a disproportionate administrative and financial burden if public sector bodies were obliged to create or adapt documents in order to provide machine-readable documents. However, an open and machine-readable format together with metadata is encouraged, 'where possible and appropriate'. Such a machine-readable format is defined as i.e. 'a file format structured so that software applications can easily identify, recognise and extract data of interest, including individual statements of fact, and their internal structure.' (Article 2.6). An open format is 'a format that is platform independent and made available to the public without any restriction that impedes the re-use of documents'. In so far as possible, both the document and the metadata should comply with open, formal standards, i.e. standards which have been 'laid down in written form, detailing specifications for the requirements on how to ensure software interoperability' (Article 2.6a). Particularly the European Parliament ITRE Committee insisted on the importance of open standards and open formats. They deemed this essential for the usefulness of the data made available (ITRE, 2012).
Machine readability is an important and welcome addition to the PSI regime in order to make digital re-use more efficient. Of course, there is no tight obligation yet to provide documents in machine-readable formats. Thus, the impact of this addition might turn out to be limited. However, it at least shows an intention of the European institutions to promote open data in the true sense of the word. In the next section, we will demonstrate that this intention also shows in the move towards marginal cost charging as the default charging mechanism.
One of the most problematic areas of the 2003 PSI Directive was the open-ended provision on charging. Under the 2003 Directive, charges for re-use could not exceed "the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment" (Article 6). Apart from the fact that the scope of 'reasonable return on investment' was very unclear, generally this upper limit was considered too high, also under the influence of the open data developments. While the 2010 consultation showed no real consensus on the marginal cost solution, there was in any case no support for charges based on either full or partial cost recovery, and a lot of support for free non-commercial re-use (this may also be explained by the large number of answers from open data/FOI activists and civil society rather than the commercial re-users) (European Commission, 2011b). In general, it seemed like there was no one-size-fits-all solution that merited a consensus among the stakeholders.
Inspired by the open data developments and convinced that a further downward harmonisation of the charges for PSI re-use was needed, the Commission proposal aimed at establishing marginal costs as a default: the total amount of the charges made by public sector bodies for the re-use of documents "shall be limited to the marginal costs incurred for their reproduction and dissemination" (European Commission, 2011a). Only in exceptional cases could charges be higher, particularly "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". In any case, the charges would have to be based on objective, transparent and verifiable criteria, be in the public interest, and be approved by the independent authority discussed earlier in this paper. For libraries, museums and archives, no such exceptional circumstances would be required, they could always charge higher costs. In both cases, the upper limit would be the limit from the current Directive. However, the burden of proof that the charges complied with the new provisions would be on the public body charging for the re-use.
As during the negotiations of the previous Directive, the charges again formed one of the major points of discussion in the Council and the Parliament. While a lot of Member States supported the idea of marginal cost as a default, other feared that this would lead to some public sector bodies being unable to still offer their data. Therefore, the discussion centred on finding an acceptable scope for the exceptions to the default of marginal costs incurred for the reproduction, provision and dissemination of the public sector documents. The final wording allows exceptions for:
a) public sector bodies that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public task;
b) by way of exception documents for which the public sector body is required to generate sufficient revenue to cover a substantial part of the costs relating to their collection, production, reproduction and dissemination. Those requirements shall be defined by law or by other binding rules in the Member State. In the absence of such rules they shall be defined in line with common administrative practice;
c) libraries (including university libraries), museums and archives.
Hence, the need for a compromise has once again created a monster. First, the exceptions refer to the concept of public task, which has been one of the most criticised terms in the 2003 Directive since its inception (European Commission, 2011b and author, 2010). Second, a difference is made between institutions that have to generate revenue to cover a substantial part of all their costs, i.e. that receive only part of their total budget from central funding on the one hand; and institutions that may generally be fully funded by the State, except for particular datasets of which the collection, production, reproduction and dissemination has to be covered for a substantial part by revenue. For the latter, this requirement has to be laid down by law or other binding rules, or defined in line with common administrative practice. This seems like an easy way to cover economic or even commercial activities by 'conveniently' defining them as a public task by law or by an administrative measure, in this way avoiding the non-discrimination rules requiring equal treatment of possible competitors.
For the exceptions based on the requirement of revenue creation, the upper limit for possible income from supplying and allowing re-use cannot exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. For museums, libraries and archives, also the costs of preservation and rights clearance can be included. This can be explained by the particular situation of the cultural institutions. However, what does seem strange is that in case of the exceptions of a) and b), the charges have to be calculated according to objective, transparent and verifiable criteria to be laid down by the Member States, while there is no such provision foreseen for the cultural institutions. Hence, their charges do not have to be transparent or objective?
While the lack of transparency of the conditions and charges for re-use were a source of many complaints during the public consultations on the review of the PSI directive, not many substantial changes are made to the text of the directive to improve this transparency. Although some changes may actually have a larger effect than would originally be expected. Under the new provisions of article 7, public sector bodies are obliged to pre-establish and publish the applicable conditions and also the actual amount of the standard charges for the re-use of PSI documents, including the calculation basis for these charges. The latter previously was only required upon request from a re-user.
In case of non-standard charges, the 2003 directive only required the public sector bodies to indicate which factors would be taken into account in the calculation of the charges. Now it is made explicit that this has to be indicated upfront, requiring the public sector bodies intending to impose charges above marginal cost to state this upfront and to publish the way they will calculate the charge. Upon request, the public sector body also has to indicate the way in which such charges have been calculated in relation to the specific re-use request. According to some this may have an unintended impact: it is unlikely that public sector bodies will go through all their datasets and establish the calculation factors for all them upfront, leaving them in violation of the directive (and assumingly also the national transposition legislation) (author, 2013). However, as there are no explicit sanctions foreseen for such violations, it will depend on the accessibility and the efficiency of the redress processes whether this potential effect may actually occur.
The Council considered these new transparency provisions a sufficient alternative for the proposal of the Commission to include an explicit burden of proof for the public sector bodies to justify any charges higher than the marginal cost default (Council 2012a). Of course, the Commission had also linked this to an explicit competence of the 'independent authority' it proposed; under such a construction the re-user may have found it much easier to oppose the charges.
3.2.7 Practical arrangements
Article 9 is amended in order to ensure the effective cross-border re-use of PSI on the European market (Recital 15). During the public consultation, the promotion of re-use across border came forward as one of the key concerns (European Commission 2011b). It was recommended that support and deployment measures were taken in order to promote the PSI re-use union-wide.
The modified Article 9 is supposed to be a first step to address this issue. On the one hand, asset lists of the main accessible documents should now be available together with their relevant metadata; accessible where possible online and in machine-readable format. On the other hand, Member States should facilitate the cross-lingual search for documents available for re-use. A more active role is demanded from the Member States: instead of ensuring that practical arrangements are in place, now they will actually have to make these arrangements.
These asset lists and portal sites are essential for allowing potential re-users to find the data they need. However, a continuous effort is needed to ensure that these lists and portals are not just created as a one-off event, but that they are also maintained, updated, and extended with new data every time this is relevant. For instance, it can be imagined that governments are fully convinced that they have fulfilled the requirements of Article 9, because they have created a portal, even though there is hardly any data available or referenced on the portal. For instance, the Belgian portal psi.belgium.be holds very few links to available data, and it is impossible to track when (if any) new datasets have been added.
3.2.8 Exclusive arrangements
The decision on the inclusion of libraries, museums and archives in the scope of application of the PSI Directive brought along another debate on the possibility of these institutions maintaining their exclusive arrangements with the private sector, often in the course of digitisation projects. Under the Commission proposal, cultural establishments and university libraries would generally no longer be allowed to conclude such exclusive agreements and any existing agreement would have to be terminated 6 years after the entry into force of the amended Directive (European Commission, 2011a).
In order to be able to digitise and preserve their collections, many cultural institutions have concluded exclusive agreements with private companies, sometimes in the form of a public-private partnership (Clapton, G. et al., 2011). In order to create incentive for the private partner to enter into a digitisation partnership with the cultural institution, the private partner is given an exclusive right, often for a number of years, to further exploit the digitised material. Without such possibilities for exclusive arrangements, some cultural institutions argued that digitisation of their collections would be impossible (Bogataj, M. et al., 2012). One of the most well-known - and criticised - examples of such exclusive arrangements is the contract between Google and the British Library for the digitisation of 250.000 books (see Ruiz, J., 2011). However, there are other examples of public-private partnerships that have taken on many shapes and sizes (High Level Expert Group on Digital Libraries, 2008).
Therefore, the Council suggested allowing exclusive agreements for digitisation projects, originally with a maximum duration of 7 years, which was later extended. The final version of the Directive now allows exclusive rights to be granted where they relate to digitisation of cultural resources, in general for a period not exceeding 10 years. However, longer exclusive agreements are possible, but then the duration (but not the raison d'être itself?) of the contract shall be subject to review during the 11th year and, if applicable, every 7 years thereafter. In return, the public sector body should get a free of charge copy of the digitised cultural resources and that copy has to be available for re-use at the end of the period of exclusivity. Hence, by way of exception, the cultural institution no longer has a choice whether to allow re-use in these occasions. However, the resources may only become available after a very long time or may be subject to the exclusive agreement forever (if the 7-yearly review deems it necessary). In this way, the public domain status of particular cultural resources may actually be at risk.
3.2.9 Transposition and review
The directive will have to be transposed two years after its entry into force. According to Article 13, the Commission shall carry out a review of the application of this Directive at the latest five years after the entry into force of this Directive. The results of this review, together with any proposed modifications, will be sent to the European Parliament and the Council.
On top of this, Member States must also submit a report every three years to the Commission on the availability of public sector information for re-use and the conditions under which it is made available and the redress practice. A particular point of attention is the implementation of the new Article 6 -regarding the charges above marginal costs. On the basis of the report, Member States will have to specifically carry out a review of the implementation of the amended charging principle.
In the previous paragraphs, we have analysed and commented on the main changes proposed to the PSI directive. These changes should allow for a broader re-use of public sector documents and bring the European Union a step further in the process towards a true European open data ecosystem. Some of the provisions agreed upon in the trialogue between the European Commission, the European Parliament and the Council do indeed show promise in their efforts to facilitate re-use and open data. The first thing that comes to mind is the introduction of a right to re-use for all accessible documents, no longer leaving it up to the Member States or the public bodies to allow re-use or not. In addition, the attention for open and machine-readable formats should make Member States and public sector bodies aware that they are not promoting open data by making available a PDF file online. Particularly the move towards marginal cost charging as the default charging mechanism can be considered an important step forward. Together, these three changes try to move the re-use of PSI towards the concept of open data: data in a machine-readable format that can be freely used by anyone for any legitimate purpose, free of charge or against marginal cost, subject only, at most, to the requirement to attribute and/or share-alike.
However, if open data was the target, the PSI directive still has a long way to go. First, while cultural institutions are included under the field of application of the directive (which is to be applauded), they are generally not under any obligation to make their content available for re-use; only cultural resources that were previously subject to an exclusive digitising agreement are required to be re-usable, and only after the (possibly endless?) exclusivity has ended. In addition, throughout the discussions, the default marginal cost mechanism has suffered from the reformulation and extension of the exceptions to this default. These exceptions are unclear and will again lead to a lot of discussion. Combined with a lack of concrete sanctions (except for the availability of a procedure before an impartial body which should act 'swiftly'), the room for interpretation and divergence is still large. We can only hope that the slightly tighter transparency requirements provide a little opposition.
Of course, from an open data perspective, it is unfortunate that the new directive does not contain any obligation for the public sector bodies to pro-actively publish their data in the sense that they don't have to analyse all their data under their national access regime to decide whether it should be made publicly accessible (and hence re-usable) or not. In general, the re-user will still have to rely on a request to obtain data for re-use. The Member States only have to make practical arrangements, such as asset lists or portals for main documents, but not make an assessment of the potential usefulness of all their data assets. As was indicated before, the European Union does not have the competence to impose any measures relating to access to data, so the PSI directive can obviously not impose any proactive publishing. However, this entails that the availability of re-usable data still to a large extent will depend on the goodwill and efforts of the Member States.
Maybe this is the main issue that is overlooked in the new directive. While stronger legislative measures will surely have an impact on the availability of open data on the European content market, this impact will remain very limited if the legislation is not supported by soft law measures and inclusive actions towards the public sector bodies in the Member States. The review of the directive in 2011 showed that many of the stakeholders supported the idea of European-wide principles or guidelines relating to the implementation of the PSI directive, relating to charging but particularly also to licensing. Licensing is also still one of the issues the open data community is struggling with. While there are many open licences available, including for instance Creative Commons  and a number of national open government licences , the way they should be used, and particularly combined, to allow open data to be fully exploited is still under discussion. During the debates on the Commission proposal, the suggestion was made to let the Commission create licensing guidelines to help the Member States and public sector bodies with their licensing policies. However, this suggestion was not maintained, although Recital 13 of the new Directive does encourage the use of open licences, intending this to be the common practice across the Union. It remains to be seen whether the Commission will still take up the challenge to provide guidelines on licensing.
Another area where the European Commission could play a role, is in the exploration of the relationship between open data and PSI re-use on the one hand, and privacy and data protection on the other hand. This relationship remains unclear and currently the uncertainty about a proper balance keeps hanging over the open data community as Damocles' sword. Providing tools and guidelines could significantly reduce this uncertainty.
In short, soft law measures could considerably augment the impact of the new PSI directive. Such measures should not only address particular topics like licensing or data protection, but they should focus most of all on increasing the awareness of the public sector of the existence of the PSI directive and the corresponding national legislation, of its consequences for their daily activities, but most of all of the possible benefits open data can have for citizens and companies, but also for their own organisations. Some Member States already made these efforts during the implementation of the 2003 directive, e.g. the United Kingdom, while others didn't. The difference can still be seen in the availability of open data today. Therefore, if a true European content market based on PSI should be emerged, the proof of the pudding will be in the eating. Not the legislation, but getting the public sector on board will be the main challenge.
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 ICRI - KU Leuven - iMinds
 ICRI - KU Leuven - iMinds