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JILT 2004 (2) - Johan Pas and Bruno De Vuyst

Re-Establishing the Balance Between the Public and the Private Sector: Regulating Public Sector Information Commercialization in Europe

 

Johan Pas
Research Fellow at the Institute for European Studies, Vrije Universiteit Brussel
Johan.Pas@vub.ac.be
and
Bruno De Vuyst
Lawyer and Research Fellow at the Institute for European Studies, Vrije Universiteit Brussel
Bruno.de.Vuyst@vub.ac.be


The authors would like to thank the two reviewers for their helpful comments and the editor for his efforts.


 


Abstract

The problems that occur in the commercial use and re-use of government information are the subject matter of a recent EU directive. [1] The paper describes the economic value of government information and documents, and its potential and actual commercial use. We then analyze the conceptually different approaches in Europe and the United States towards a legal framework for the commercial use of public sector documents and government information. The commercialization by governments of their own information and the arguable difficulties it creates for fair competition with the private sector are indicated with some policy and ethical considerations. Finally a short analysis of the new EU directive is included and some conclusions are drawn.

Keywords: Public sector information, copyright law, synergy guidelines, Directive 2003/98/EC.


This is a refereed article published on: 30 November 2004.

Citation: Pas and De Vuyst, 'Re-establishing the Balance between the Public and the Private Sector: Regulating Public Sector Information Commercialization in Europe' , 2004 (2) The Journal of Information, Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_2/pasanddevuyst/>.


1. Introduction

Regulating the use of government information [2] within the European Union was first attempted by the European Commission in the mid-eighties, but only recently resulted into a directive. The mere fact that it took about twenty years before a regulative framework came into being clearly shows the difficulty, and the importance of public sector information.

Data and Information

Governments are undoubtedly the largest collectors of commercially valuable information. In exercising its different duties, a government and its agencies obtain, collect, collate, recreate and store huge amounts of information. Public sector information is not only the basis of public sector decision-making; it also contributes essentially to the information structure of our societies. The features of public sector information are unique: it can –where necessary- be collected pursuant to a legal obligation weighing on the information provider, it is associated with neutrality, and it provides an ‘informational backbone’ to economic and scientific activities. [3] It is also considered as being complete. Most of all though it is inexpensive, since civil services operate on a non-profit basis. [4]

In this article 'data' covers every symbol, sign or measure that is in a form that can be directly captured by a person or a machine. Conventionally, the most useful data is that which represents (or purports to represent) real-world facts and events. [5] 'Information' is a notion that is much more difficult to define, as it has different meanings. It refers to either a process allowing one to obtain knowledge and insight, or the knowledge in the result of this process, or as a commodity. [6] It differs from data because it can be placed in a context and, as such, has a value. [7] We will consider it as a limitation of or a selection from possibilities, as ordering or forming the randomness and chaos of data. The definition of information as a selection and arrangement of data resembles that of a ‘compilation’, which is found in many copyright statutes including the Canadian Copyright Act. [8] Public sector information is defined as all information held by public sector bodies, irrespective of the medium through which it is conveyed. Thus it includes information written on paper or stored in electronic form or as a sound, visual or audio-visual recording, and any part thereof. [9]

Categories of PSI

Public sector information may be divided in different categories: economic information (financial information, information concerning undertakings and economic statistics), environmental information (of a hydrographical nature, information on the use of land, information regarding the quality of the environment, geographical and meteorological information), agricultural and fishing information (information on harvests, use of resources, and fisheries), social information (demographic information, behavioral information, information concerning health and sickness), legal information (information regarding crimes, but also on laws and jurisprudence), scientific information (results of research by universities and government subsidized research institutions), cultural information (objects situated in museums and art galleries, as well as library services) and finally, political information (press releases by governments, proposals and consultation). Besides its use in exercising governments' public task, this information can also be used for commercial purposes, either by governments themselves or by third parties, and thus, makes such information a valuable resource.

2. The U.S. and Europe: A Mirror Image?

The main reason for putting in place a European system that regulates the commercial use of public sector information appears to find its origin in U.S. policy attitudes. In the U.S., commercialization of public sector information is a well-established industry. According to a study for the European Commission, the estimated economic value of government information per annum in the E.U. is about 68 billion Euros or 1% of the GNP of the European Union. This is as much as well-established sectors like those of legal services, printing or textiles. [10] This may explain why there has been quite some pressure by the private sector on the Commission to seize this opportunity. Although the E.U. in this matter refers to the U.S. as an example there are a number of fundamental differences between U.S. and European attitudes.

A comparative analysis of the American and European system on access of government information falls outside the scope of this paper. [11] Nevertheless one should draw attention to some differences that are of importance in the discussion on the commercialization of public sector information. First, at the U.S. federal level a system of open records exists. The basis of this system lies in the Federal Constitution and the Copyright Law, with the former prohibiting any government restriction regarding freedom of expression and information, and the latter excluding [12] copyright on works of the federal government. The system, in particular the absence of any copyright on federal documents, is exceptional compared to other countries. [13] Indeed, in European countries such as France, Germany, the United Kingdom and Sweden, government information can benefit from copyright protection, as these countries are part to the Berne Convention by which countries are left free to decide which protection to give to legislative, administrative and legal documents. Secondly, in Europe, not even within the European Union, [14] there exists no common legal framework regarding the accessibility of government information. Each country organizes its freedom of information laws according to its own administrative laws and practices, and this is unlikely to change soon. [15]

Specifically regarding the issue of commercialization, there are several more differences between Europe and the U.S. First, there is a conceptual difference as it is argued that in those countries that have both legal instruments to allow access to information and policy instruments concerning commercial exploitation of public sector information, two approaches are possible, each reflecting different philosophies. [16] There is the approach of the U.S., which makes no distinction between accessing government information and the dissemination or commercialization of it. The one implicitly appears to be part of the other: obtaining access to public sector information on the basis of, for example, the Freedom of Information Act automatically includes the right of re-using that same information. In Europe on the contrary, the right of accessing government information and re-using it are two conceptually different activities. The actual access belongs to the sphere of human and fundamental rights, while the commercial use of government information relates to the realm of intellectual property rights and fair competition. [17]

Furthermore, there are differences between both continents in the role public sector agencies are perceived to play in the commercialization of government information. While in the U.S. cultural traditions favor commercialization of public information, the question raised there is whether public sector activity could be justified. The opposite presumption is the norm in Europe, where the question is whether commercial exploitation of public information can be justified. [18] Thus, in the U.S., where commercialization of government information by the private sector is a well-established practice, the discussion rather focuses on what role agencies may play in commercializing their own information, while in Europe the discussion is on whether government information can be disseminated for commercial purposes at all.

Finally, there is a tension existing between freedom of information and privacy. The fact that government agencies possess a large amount of private information is an important issue in Europe, rather more than is the case in the U.S. This is mainly because European and U.S. positions on privacy and freedom of information are mirror images of each other: while Europe has comprehensive systems reflecting a commitment to protection of privacy, the U.S. has rather a patchwork of incomplete protections reflecting uncertain commitment to privacy. [19] At the same time, historically, the U.S. has a well-established legal framework guaranteeing access to federal government information, while in Europe this is not the case.

3. Commercializing Government Information: Shifts Occurring

Before the use of IT was widely introduced at government agencies, a reasonably clear division of tasks existed between government agencies and the private sector regarding public sector information. It was felt that the public sector should make available, free of charge or at marginal cost price, raw data that was produced in the context of its tasks. It should undertake this towards citizens as part of their democratic and consumer rights or to business with a view to commercial re-use. [20] Consequently, it was perceived to be the task of the private sector to add value to the raw data it had obtained from the public sector, and thus satisfy market needs.

However, the introduction, during the seventies and eighties, of information technologies within government agencies, thus facilitating information storage and handling, gave rise to a number of problems in the long term. First, somewhat of a paradox was created. On the one hand the use of information technology renders information in possession of government agencies more attractive for the private sector, since its electronic format allows information providers to repack and recombine more easily such information, and bundle it with new types of retrieval software to create commercially viable products. Thus reducing the costs to transpose government data in sellable information, and as a possible result increase their margin of profit. [21] On the other hand however, the difference between raw data and sellable information became more vague. Indeed, nowadays it demands little effort to combine different data and obtain commercially valuable information. As a result, from an end-user point of view, there is less need for added value to raw government data by private intermediaries, since such raw information already has a high value to start with. Furthermore, government agencies themselves bring together more easily data from different sources, and are able to present them in a format that can immediately be used by those requesting it.

Based on the above, one might suppose that the private sector has every interest in government agencies not being allowed to commercially exploit their own information. However, as contradictory as it may seem, the private sector may have an interest in the former being allowed to do so. It was argued by Burkert that if private actors would press their point that government should refrain from creating marketable information resources, then this could have several negative consequences for the private sector: some public sector information which the private sector uses as resources might be discontinued altogether. [22] Like in some cases where the private sector does not have the necessary incentives or capability to compel the collection of data necessary to provided accurate inputs. [23] In other cases the remainder of available information may require a larger value-adding effort for the private sector. Furthermore, even if kept outside the market of commercializing public sector information, government agencies will still be under a legal obligation of allowing a general right of access, which will result, in many areas at least, of information demand being turned away from the market, since information requesters will go to the public sector source, where they would only have to pay the administrative fee, rather than a market price. [24]

Despite these arguments, private sector industries appear to claim government information as their property, they want to see their agent role guaranteed, and remain indispensable for making government data useable. They fear that if government information is presented by the public sector itself in a ready-to-use way, its commercialization may largely by-pass all private sector involvement.

4. What Role for the Public Sector in Commercializing Government Information?

The above may be the real underlying reason for the private sector pursuing regulatory efforts regarding government information within the European Union. Other arguments are however being presented to prevent government agencies from selling their own information.

The foremost concern of the Directive appears to have been to eliminate competition from government agencies, using the distortion of fair competition as the main argument. One distortion would be that governments, due to their function as tax collector, already benefit from the necessary resources that should allow them to disseminate information. In addition, not having to pay taxes creates the possibility of unfair competition by allowing sales below cost, hence driving out private sector initiative altogether. But government information cannot be considered as any other resource. As was argued, ‘Unlike other types of goods or services, the very existence of government information is uniquely due to the existence of the government itself.’ [25] Indeed, the peculiarity of public sector information is the fact that it concerns government information. ‘Government information is not a raw resource. The concept of unfair competition is therefore a poor argument. In fact, the government is supplying private industry with an already-developed resource at no cost.’ [26]

Another argument is that if a taxpayer would want government information for commercial use, and he would have to pay for it more than the marginal cost, he would actually pay twice for the same thing, once as a taxpayer and once when ‘buying’ the information. Peterson refutes this taxpayer protection argument: as the resource is obtained through expenditure of public funds, it does not mean that it is available for the use of any taxpayer at no charge. Nobody would walk into a government office to use a typewriter, simply because it was paid for by taxpayer's money. [27]

Finally it is argued that public sector involvement would chill initiative and destroy existing jobs. Again, this is based on questionable assumptions, since the past has proven otherwise. When governments were supplying information products, private companies already successfully competed through two strategies: repacking and reselling of the same basic information (copyright is not an issue) and by adding value (new elements subject to copyright). These strategies have been exploited in many ways. [28] [JP1] 

It is worthwhile mentioning that in se commercial activities by the public sector do not, contrary to what is often argued, disturb fair competition in any significant way. Even more, competition between the public and the private sector is not prohibited by the European Union. Indeed, European competition law allows public sector entities to compete with private sector entities, as long as the former do not abuse their dominant position. [29] Furthermore, one has to bear in mind article 86 of the EC-treaty which, according to its paragraph 2, states that once a proposed information service is described as serving the public interest, authorities charged with managing such a service are no longer required to respect Community provisions on fair trade where these pose a de facto or de iure barrier to the accomplishment of the public interest mission. [30] This is an exception to article 82 of the EC-treaty and to fair competition in general, making the acknowledgement of a breach of article 82 EC-treaty all but evident. [31]

It would be far more disturbing to competition to create a monopoly over public sector information by a private company. [32] One could imagine that a company, having a monopoly over certain public sector information, refuses to deliver or supply that information to other information providers, or imposes excessive high prices. Does it seem logic that a private company, having a monopoly over certain public sector information, imposes market prices to another government agency for obtaining public sector information? One could in this regard refer to the Netherlands, where a private company has obtained a monopoly over the dissemination of judicial decisions. The Dutch government decided to exclusively transfer the dissemination of consolidated legal information to a consortium of publishers, which owns all copyright, and is allowed to charge - at market price - all users except state governments and the Staten Generaal – but including municipalities, provinces, individuals and companies. [33] Thus, public sector information is being sold against market prices, even to other public actors such as municipalities and provinces.

There are even valid arguments in favor of competition between the private and the public sector regarding the commercial exploitation of public sector information. Indeed, if governments would be allowed to introduce their information onto the market at the price of what it is worth, i.e. at cost, provided the administration is allowed to directly benefit from the income thus generated, this could re-establish a certain balance between the public and the private sector. [34]

This way private undertakings would be forced to remain creative, and to keep ahead of information services governments provide. The private sector would no longer be able to merely resell basic information, but would have to finalize a semi- or quasi-finished product with added value. This may result in the public sector depriving the private sector of some lucrative opportunities, but does not exclude creative use of commercially valuable information by the latter. [35] Therefore public sector agencies should be allowed to benefit from the potentials of information and communication technologies for their administrative duties and to add value to their information resources.

Nevertheless, the most important issue regarding public sector information is that it should remain accessible for citizens. The difficulty thus lies in deciding what information should be kept freely accessible to citizens as part of their fundamental democratic right of access to information, and at the same time, distinguish that public sector information which is suitable for commercial exploitation. Essential may be a link between a government agency adding value to the information it possesses and the extent to which it contributes to the exercise of its public task. It might be interesting in this regard to take criteria of finality into account, and to point out that in several European countries there is an obligation to justify whenever a government agency or an administration takes a decision. Judicial or administrative review on these justifications could become part of the review process of granting access to and allow re-use of public sector documents. For example, all information indispensable for a government agency to take a decision, and which helps the decision to be justified and motivated, should be out of reach of commercialization and should be available to all at no or at minimum cost.

One way of undertaking this would be by linking the accessibility of public sector information to its use by the administration. The decisive criteria on information being suitable for commercialization would then be the contribution the information plays in taking a particular decision. If the information contributes to motivating the decision, then the information should not be considered for commercialization since, under the principle of access to government information, it should remain freely accessible. As Burkert suggests, to the extent that administrations make use of the value-added procedures of information handling, either by themselves or by employing third-party services, to the same extent these services should be covered by the access principle. [36] This means that the more public agencies add value to their own information (for example by crossing data from different origins), and the more they use this information in the exercise of their public task, the more information, in absolute terms, should become freely accessible to citizens (including private undertakings).

In this, the public sector, depending on which information it uses in order to exercise its public task, defines which documents are accessible to citizens on the one hand, and at the same time, defines the market within which private and public undertakings may act at market prices. Although some might be horrified by the idea of public agencies competing with the private sector, one should not forget that a greater danger might come from an information policy of private exploitation which may lead to a selective kind of accessibility of public sector information; as only those information products will be produced for which there exists a profitable market, and less ‘attractive’ segments will be neglected, as exploitation decisions will be based on economic grounds and not on criteria of public service. [37]

Indeed, governments can benefit from public-private partnerships and private agencies’ know-how and expertise, but from a democratic point of view the pursuit of transparency remains an essential government duty that cannot be transferred to the market. [38] In the relationship between (economic) exploitation rights and (democratic) transparency, the latter should have the highest weight. [39]

5. Directive 2003/98/EC on the Commercial Use of PSI and its Origin

This part will analyze the origin and content of the recent European directive on the commercial use of public sector information.

Evolution towards a regulating framework on the commercial use of PSI

By the mid-eighties the European Commission, prodded by the ICT-sector, took its first steps to regulate the use of government information. These measures were mainly of a mere consultative nature. A few years later however, the effort resulted in the so-called ‘Synergy Guidelines’. [40] Its main objectives were to maintain the accessibility of public sector information, the availability of government information at no or against reasonable charge, to keep the information easy to re-use and re-format, and to stress the respect of certain principles of fair competition. [41] Although the Synergy Guidelines already dealt with a number of issues regarding commercial exploitation of public sector information, they were subjected to heavy critique, as they were perceived as tackling the issue from the private sector’s point of view, and insufficiently guaranteeing the right of access to government information. Despite the Synergy Guidelines’ lack of success, the European Commission considered the issue important enough to order a number of studies. The result of these studies were brought together in ‘Publaw-reports’, from which Publaw 1 and 3 covered, respectively, the existing legislation on access to government information within the different EU-member states, and the legal framework for its commercial exploitation. After a conference on the issue in 1996 in Stockholm, the Commission decided to publish a Green Paper. [42] This allowed the parties concerned, both within the private and the public sector, to formulate their views. [43] The Green Paper gave rise to a discussion on a number of issues: the different categories of government information, price definition, conditions of use, protection of personal data, access to information rights, fair competition, copyright, organization of government agencies etc. It was stressed that, with regard to many of these issues, the matter should be regulated at a European level. [44] Also, the way in which a regulatory framework regarding public sector information had to be put in place, by way of a directive or a regulation, appeared to be an issue, since the private sector preferred a regulation, while the public sector rather wanted it to be dealt with by way of common principles. Despite these different views, the EU, in its e-Europe Action Plan ‘An Information Society for All’, [45] put forward a number of objectives with regard to ‘e-Government’ and ‘digital content’, which on their turn were part of the mission to become the world’s most competitive and dynamic economy. [46] According to the European Commission, the latter required Europe to enter the digital age, including as to public sector information. In a Communication, the European Commission maintained the basic assumptions of the Green Paper –government information not only being important to democracy and citizenship, but also having the potential to play key economic role, both as to the internal market as to offering new kinds of products and services. The Communication took into account the remarks that were made on the Green Paper, and summed up a number of barriers that would block a harmonized information society, including the different administrative regulations that exist between the member states, the different levels of using information technology in government agencies, the existence of exclusive agreements between public and private actors, the question of commercialization being authorized or not, or the differences in pricing etc. [47] Finally, in June 2002, the Commission did issue a proposal for a directive, [48] which took until November 2003 to be approved, and become Directive 2003/98/EC.

Content of the Directive

Although the title of the proposal was ‘re-use and commercial exploitation’, the title of the actual directive was changed into ‘re-use of government information’. It was in its opinion on the common position of the Council that the Commission decided to bar ‘commercial exploitation’ from the title. [49] One might wonder whether initially the Commission hadn’t the intention to make a distinction in the proposal between mere re-use and commercial exploitation. All the more since the final directive defines re-use as ‘the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced.’ [50]

Also, the proposal did use the term ‘public sector documents’, but, as recommended by the Committee of Regions, the European Parliament amended this into ‘public sector information’. [51] The Committee considered the title of the proposal inappropriate because, as was shown in the Communication, it is the exploitation of public sector information and not the exploitation of public sector documents that needs regulating, the latter already being covered by the legislation of some Member States. [52] The European Parliament amended the proposed directive, arguing that <AmJust>the term ‘information’ corresponds better with the concept intended than the term ‘document(s)’ does. [53] At first sight these differences may seem of minor importance but, according to Janssen en Dumortier, they have considerable consequences. Document requests for access and re-use only regard existing documents of the public sector bodies, while in an ‘information-based’ system the requests are not necessarily for an actual document, but may also require a response to a particular question for which the public sector agency will be forced to gather information from different sources. The latter would put a considerable burden upon the public sector body concerned. [54]

The introductory part of the Directive, as well as article 3, reflect the general principle. It is stressed that this directive does not impose the re-use of government information. It is up to the Member States or their public sector bodies to decide on allowing re-use or not. The Directive only builds on the existing access regimes in the member states and does not change the national rules for access to documents. [55] Where the re-use of documents held by public sector bodies is allowed, member states shall ensure that these documents are re-usable for commercial and non-commercial purposes. [56] This clearly shows that one did not want to touch upon the existing national rules within the member states. Janssen en Dumortier argue that therefore one can hardly consider the re-use of public sector documents as a general right, since its existence depends on the discretion of the member states or their public sector bodies. [57]

Chapters II, III and IV respectively deal with requests on re-use, conditions on re-use, and the prohibition to discriminate. As to the processing of requests on re-use, the Directive, on for example the period within one has to reply to the request and the means of redress in the case of a negative response, refers to the national access legislation in place. [58] One might wonder if, by each time referring to the national rules in place, this in any way contributes to the harmonisation of the national rules and practices on re-use, as put forward in the Directive. [59] Chapter III, entitled ‘Conditions for Re-use’, only contains obligations for governments or public sector bodies, and does not in any way mention conditions of (re-)use for the private sector. Public sector bodies are expected to make available their documents preferably in electronic format. [60] Although governments are only encouraged to do so, it seems clear that making available public sector information in electronic format aims at rendering commercial exploitation easier.

One of the most controversial issues related to the re-use of government information is that of pricing, the more so since this is linked to the question of fair competition. It is a fact that pricing policies of government information are caught between the profit-principle, the principle of publicity and guaranteeing fair competition that renders pricing difficult. Based on the principle of profit, he who receives the information to be used should pay for it. How much he should pay depends on its turn upon preventing unfair competition. The latter will often lead to charging ‘market prices’ -which are not necessarily cost-oriented- when a public sector body ties an information-product to comparable prices charged in the commercial sector, even without it being feasible of correctly calculating the cost of the information-product. [61] Whether public sector bodies will be able to charge market prices will mainly depend of whether they themselves are allowed to commercially exploit their own information. Since opposite to the principle of profit, that of publicity implies that government information, certainly legislative, parliamentary, and administrative information should remain accessible to citizens and undertakings, at most against cost of dissemination. [62] The Directive skirts in a way the issue of pricing. If charges are made, the total income from supplying and allowing re-use of documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. [63] Thus, in principle, the Directive accepts the idea that public sector bodies can profit from making available government information, while in earlier documents the Commission stressed cost-orientation, preferably as low as possible. [64] The Directive also requires that public sector bodies make available to those who file a request the applicable charges, the basis of calculation and the conditions of use, as well as the means of redress relating to decisions or practices affecting them. [65] Conditions of use can also be regulated by way of imposing licenses, preferably standard licenses, which, however, may in no way unnecessarily restrict possibilities for re-use, nor be used to restrict competition. [66] 

Guaranteeing fair-trading is explicitly dealt with again in Chapter IV. Public sector bodies need to apply the conditions on the re-use of public sector information in a non-discriminatory way. This implies that whenever a government makes available documents for purposes that go beyond its public tasks, it may not abuse its dominant position, and is considered being subjected to the same charges and other conditions as apply to other users. [67] The latter may be applicable to the transfer of information within the public sector, thus between two governments of which one uses the information for purposes beyond its public tasks. But one can hardly imagine that a public sector body, for information it possesses and which it wants to commercially exploit, would in practice subject itself to the same conditions as those for any other user. Furthermore, the question is if , in this case, an actual transfer of information took place at all. [68] Finally, unless it is necessary for the provision of a service in the public interest, no exclusive agreements are allowed, and the re-use of documents shall be open to all potential actors in the market. [69]

Some Remarks on the Directives Provisions

Article 1 of the Directive defines the scope of application. In paragraph 2(e) and (f) of that article some categories of documents are exempt. It relates to documents held by educational and research establishments, as well as cultural establishments. Although these exemptions aren’t extraordinary in any way, they were nevertheless the subject of a fierce discussion during the legislative process. The proposal for a Directive already contained these exemptions, [70] but during the parliamentary part of the co-decision procedure EP-member Van Velzen, (who by the way acted as a raporteur in the designated parliamentary commission) undertook an effort to ban the foresaid exemptions. [71] His amendments would result in an extensive increase in the Directive’s field of application. It would mean that literally all information owned by institutions financed by government funds would fall within the scope of the Directive. [72] Particularly educational and research establishments, as well as cultural institutions, would be negatively affected by this. Indeed, in several European member states these institutions see their budgets being restrained year after year, which forces them to look for alternative sources of revenue. Part of this happens by way of selling information they have gathered. If the new Directive would apply to them, this would make them even more dependent of public funds. [73] Opponents to the proposed amendments also pointed out the enormous legal consequences. Since the rights of different cultural and educational institutions as creators are being determined by international conventions and agreements, from the Berne Convention [74] to the E.U.’s directives on copyright [75] and databases, [76] if the proposed amendments had been voted, they would be in contradiction to those regarding the re-use of information as stipulated in the aforementioned international texts. [77] The proposed amendments were, after lobbying by different groups, withdrawn before voting took place in January 2003.

As mentioned earlier, the Directive, in the chapter on the conditions of use, only contains provisions relating to public sector bodies. In other words, the Directive stipulates in no way the conditions of use for the actual re-user or he who files the request. Article 8 leaves open the possibility of imposing conditions of use by way of licenses. Still, this depends upon the member states. If a member state, as allowed by the Directive, does not use a system of licenses, this means it will not impose any other conditions of use, different from those existing within national legislations. This while the responsibility, the correct use of documents, the guarantee not to alter the content, and to recognize the origin are only some of the conditions to which he who files a request of re-use should be subjected at any time. These conditions should not depend of whether or not they are provided for by national legislation, and they should be imposed independently of whether the member state use a system of licenses or not. In short, the Directive extensively draws upon how public sector bodies should act to make government information available for commercial exploitation by the private sector, but lacks the harmonization of the most essential conditions of use for the private sector. One would be tempted to state that the Directive did not want to restrain the private sector in realizing the economic potential of public sector information, and thus limited the obligations of the private sector to almost nothing, despite of the negative influences this may have.

6. Conclusion

The main objective of regulating the matter on a European level was to bring about some harmonization, and to bring down the differences that existed between the member states in the re-use of government information having a negative influence on the sound functioning of the internal market. The result is rather poor since vagueness, repeated references to national rules and practices, and refraining from deciding upon essential elements like pricing make that the Directive may bring a lot more harm than good. It is well possible that the, sometimes strong, differences between member states’ legislations, as to access and re-use of public sector information, will only increase after the Directive’s implementation.

Furthermore, the EU and in particular the Commission could have made advantage of the discussion on the commercialization of public sector information to open up the date to the matter of access as well, and to point out the need of a harmonized legal framework on the access and the commercialization of government information, both on the level of the member states as on the level of EU-institutions themselves. Finding a basis for this in the treaty would be all but evident, since this would unavoidably result in interfering in the administrative organization of member states. Nevertheless, one could have at least brought up the need of harmonization, the more so since the European Unions’ Charter on Fundamental Rights explicitly recognizes a general right of good administration and access to documents of institutions, bodies and agencies of the European Union. [78] Broadening this to a similar community right of access is therefore a necessity. Only then, after the differences between the member states have been eliminated, can a real harmonization of the rules on commercial exploitation of public sector information take place. It seems that the European Commission did let slip an important occasion, and instead of bringing harmonization within the EU, only increased the lack of it.

The new Directive 98/2003/EC should be implemented in the different member states by July 2005. It goes beyond saying that this will provoke some interesting discussions. These discussions will certainly reflect the tension at which the commercialization of government information is subjected: torn between democratic rights and citizenship on the one hand, and market forces on the other. Although arguments are often made in favor of the market, market phenomena are not -as the history of economic thinking shows- driven by natural laws but by historically grown patterns of perceptions of what a marketplace should be. These patterns are formed by the cultural, social and political conditions under which they were generated. [79] Therefore it is important not to let us be blinded by economic theories on the function to be fulfilled by the State within a foreign market. The more since, as this article has pointed out, these theories originate from countries that have conceptual different views on issues related to the commercial exploitation of public sector information.

It might be that the commercialization of public sector information is a relative important market, for example in the U.S. But other than mere economic elements have to be taken into account as well. A fair debate on the commercial exploitation of public sector information must also take into account the respective differences between the U.S. and the European continent.

 

Notes and References

[1] Directive 2003/98/EC by the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 90.

[2] We use the term ‘government information’ although ‘public sector information’ or ‘psi’ can be used just as well. In this paper it is meant to cover the informational resources gathered and produced in the public sector in the course of its activities.

[3] H., BURKERT, Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, Available online at:

<http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf>, 8/11/2004, p. 4.

[4] Y., POULLET ‘A Study of Comparative Law and European Law’ in C., DE TERWANGE, H., BURKERT & Y., POULLET, Towards a Legal Framework for the Diffusion Policy for Data held by the Public Sector, Deventer, Kluwer, 1995, p. 5.

[5] R., CLARKE, 'Freedom of Information? The Internet as Harbinger of the New Dark Ages', First Monday, Vol. 4, Nr. 11, 1999, Available online at:< http://www.firstmonday.org/issues/issue4_11/index.html>, 8/11/2004, p. 3.

[6]W., MOCK, 'On the Centrality of Information Law: a rational discussion of information law and transparency', John Marshall Journal of Computer and Information Law, 1999, p. 1074.

[7]R., CLARKE, 'Freedom of Information? The Internet as Harbinger of the New Dark Ages', First Monday, Vol. 4, Nr. 11, 1999, Available online at:

< http://www.firstmonday.org/issues/issue4_11/index.html>, 26/8/2002, p. 3.

[8] G. J., WALTERS, Human Rights in the Information Age. A Philosophical Analysis, London, University of Toronto Press, 2003, p. 17.

[9]European Parliament Commission on Industry, External Trade Research and Energy, 'Report on the proposal for a European Parliament and Council directive on the re-use and commercial exploitation of public sector documents', Raporteur W.G. VAN VELZEN, A5-0025/2003, Final, 2003, p. 20.

[10] X, Commercial Exploitation of Europe’s Public Sector Information – Final Report, Surrey, England, Pira International, 2000, Available online at: <http://www.cordis.lu/econtent/studies/studies.htm>, 9/11/2004, p. 16.

[11] For a comparative analysis of both systems read J., PAS, ‘The Commercialization of Government Information and the Proposal for a Directive (2002) 207 by the European Commission’, Refereed Paper, E-Law – Murdoch University Electronic Journal of Law, Vol. 9, Nr. 4 (December 2002), Available online at:

<http://www.murdoch.edu.au/elaw/issues/v9n4/pas94.html>.

[12] Although some exceptions do exist, like for example the 1994 act that introduced the National Technical Information Service as part of the federal Department of Commerce, as a clearinghouse for the collection and dissemination of scientific, technical and engineering information created by other federal agencies. Since it is required to be self-sustaining, it must set prices for its information products and services that will cover its costs. One result is that the prices for many NTIS documents exceed the costs of reproduction. Gellman, R., 'The American model of access to and dissemination of public information', Stockholm 1996 Conference: Access to Public Information: A key To Commercial Growth and Electronic Democracy, 1996, Available online at:

< http://europa.eu.int/ISPO/legal/stockholm/en/gellman.html>, 9/8/2004, p. 5.

[13] M., REINSMA & H., VAN DER SLUIJS, Naar Ruimere Openbaarheid en een Vrij Gebruik van Bestuurlijke Informatie, (Towards a Larger Publicity and Free Use of Administrative Information), Report to the Dutch Ministry of Internal Affairs, December 2000, Available online at:

<http://www.burger.overheid.nl/nieuws/?id=341>, 9/11/2004, p. 66.

[14] At most the E.U. has introduced in 2001 a regulation concerning the accessibility of documents from the European Parliament, the Council and the Commission. Regulation nr. 1049/2001 by the European Parliament and the Council, 30 May 2001, 'Access to documents of the European Parliament, the Council and the Commission', OJ L, 145, 31/05/2001, p. 43-48.

[15] H., BURKERT, Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, Available online at: <http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf>, 8/11/2004, p. 4.

[16] G., PAPAVLOU, ‘Public Sector Information Initiatives in the European Union’, UNESCO Infoethics 2000, http://webworld.unesco.org/infoethics2000/papers.html#papapavlou, 9/11/2004, p. 3.

[17] Ibid, p. 3.

[18] H.H., Jr., PERRIT & Z., RUSTAD, ‘Freedom of Information Spreads to Europe’, Government Information Quarterly, Vol. 7, Nr. 4, p. 404.

[19] H. H., Jr., PERRIT, ‘Commercialization of Government Information: Comparisons Between the European Union and the United States’, Internet Research, Vol. 4, Nr. 2, 1994, p. 7.

[20] G., PAPAPAVLOU, ‘Public Sector Information Initiatives in the European Union’, UNESCO Infoethics 2000, Available online at: < http://www.webworld.unesco.org/infoethics2000/documents/paper_papapavlou.rtf>, 9/11/2004, p. 2.

[21] H., BURKERT, Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, Available online at: <http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf>, 9/11/2004, p. 4.

[22] Ibid, p. 6.

[23] A., WELLS BRANSCOMB, Who Owns Information?, New York, Basic Books, 1994, p. 171.

[24] H., BURKERT, Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, Available online at:<http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf>, 9/11/2004, p. 6.

[25] H., CAWS-ELWITT, 'Copyright, Competition, and Reselling Government Information: Impact of Dissemination', Katharina Sharp Review, Nr. 7, 1998, Available online at: <http://www.lis.uiuc.edu/review/7/>, 9/11/2004, p.3.

[26]Ibid, p. 3.

[27] L., PETERSON DANDO, 'A Case for the Commercialization of Public Information', Available online at: <http://www.spatial.maine.edu/tempe/dando.html>, 9/11/2004, p. 4, also published in W. BAMBERGER & B.N., SHERWOOD (eds.), Marketing Government Geographic Information: Issues and Guidelines, Washington D.C., URISA, 1993.

[28] H., CAWS-ELWITT, 'Copyright, Competition, and Reselling Government Information: Impact of Dissemination', Katharina Sharp Review, Nr. 7, 1999, Available online at: <http://www.lis.uiuc.edu/review/7/>, p. 4.

[29] R., VAN GOMPEL & J., STEYAERT, ‘Going beyond access: accessibility of government information in the electronic media age’, International Communication 23 Conference and General Assembly IAMCR, July 21-26 2002,Barcelona, Available online at:

<http:// www.portalcomunicacion.com/bcn2002/n_eng/programme/prog_ind/papers/v/pdf/v003se03_vango.pdf>, 9/11/2004, p. 6.

[30]C., DE TERWANGE, 'Effect of Fair Trading Laws on the Commercialisation of Data Held by the Public Sector' in C., DE TERWANGE, H., BURKERT & Y., POULLET, Towards a Legal Framework for the Diffusion Policy for Data held by the Public Sector, Deventer, Kluwer, 1995, p. 64.

[31] For further explication on the relation between art. 82 and art 86 (2), see A., JONES A.& B., SUFRIN, EC Competition Law: Text, Cases and Materials, Oxford, Oxford University Press, 2001, 430-478.

[32] See for example, on the refusal to supply information, the ruling of the European Court of Justice in the famous Magill-case. ECJ, RTE & ITP v. Commission, 1995, ECR, I, 743.

[33] M.M.M., VAN EECHOUD, 'Openbaarheid, exclusiviteit en markt: commercialisering van overheidsinformatie', Mediaforum, Nr. 6, 1998, Available online at:< http://www.ivir.nl/publicaties/eechoud/overheidsinformatie.html>, 9/11/2004, p. 4.

[34]H., BURKERT, Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, Available online at:<http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf>, 9/11/2004, p. 6.

[35] R., VAN GOMPEL & J., STEYAERT, ‘Going beyond access: accessibility of government information in the electronic media age’, International Communication 23 Conference and General Assembly IAMCR, July 21-26 2002, Barcelona,

<http:// www.portalcomunicacion.com/bcn2002/n_eng/programme/prog_ind/papers/v/pdf/v003se03_vango.pdf>, 21/5/2003, p. 25.

[36] H., BURKERT, Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, Available online at:<http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf>, 11/7/2002, p. 15.

[37] R., VAN GOMPEL & J., STEYAERT, ‘Going beyond access: accessibility of government information in the electronic media age’, International Communication 23 Conference and General Assembly IAMCR, July 21-26 2002, Barcelona, Available online at:

,<http:// www.portalcomunicacion.com/bcn2002/n_eng/programme/prog_ind/papers/v/pdf/v003se03_vango.pdf>, 9/11/2004, p. 23.

[38] Ibid, p. 25.

[39] Ibid, p. 23.

[40] COMMISSION OF THE EUROPEAN COMMUNITIES, Directorate for Telecommunications Information Industries and Innovation, Guidelines for improving the synergy between the public and the private sectors in the information market, Luxemburg, 1989, Available online at:

< http://europa.eu.int/information_society/topics/multi/psi/library/index_en.htm>, 10/2/2004.

[41] Y. POULLET, ‘A Study of Comparative Law and European Law’ in C. DE TERWAGNE, H. BURKERT, Y. POULLET (Eds.), Towards a Legal Framework for a Diffusion Policy for Data held by the Public Sector, Deventer, Kluwer, 1995, p. 2.

[42] COMMISSION OF THE EUROPEAN COMMUNITIES, Green Paper on Public Sector Information in the Information Society, Public Sector Information: A key Resource for Europe, Com(1998) 585, 1998, Available online at:

<http://www.cordis.lu/econtent/publicsector/greenpaper.html>, 9/11/2004, 34 p.

[43] For an overview of the reactions on the Green Paper,

< http://www.cordis.lu/econtent/publicsector/greenpaper.html>, 4/2/2004.

[44] COMMISSION OF THE EUROPEAN COMMUNITIES, Public Hearing on the Green paper on Public Sector Information in the Information Society, 25 May 1999, Brussels, Proceedings of the hearings are available on the Cordis-website: <http://www.cordis.lu/econtent/publicsector/gp_min.html>, 5/02/2004.

[45] Action Plan prepared by the Council and the European Commission for the Feira European Council 19-20 June 2000, eEurope 2002:An Information Society for All,14/6/2000, Available online at:

http://europa.eu.int/information_society/eeurope/action_plan/pdf/actionplan_en.pdf, 2/7/2002, 29 p.

[46] Ibid, p. 1.

[47] Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, eEurope 2002: Creating a framework for the exploitation of public sector information, COM (2001) 607 Final, 23/10/2001, Available online at:<http://www.cordis.lu/econtent/psi/psi_policy.htm>, 17/6//2002, p. 5.

[48] COMMISSION OF THE EUROPEAN COMMUNITIES (2002), Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 207 Final, 5 June, Available online at:

<http://www.cordis.lu/econtent/psi/psi_policy.htm>, 27/10/2004, 18 p.

[49] COMMISSION OF THE EUROPEAN COMMUNITIES, ‘Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the European Parliament’s amendments to the Council’s common position regarding the proposal for a directive of the European Parliament and of the Council on the re-use of public sector information’, Com(2003) 620 Final, 15/10/2003, Available online at:

< http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=eng&DosId=174639>, 15/3/2004.

[50] Article 2.4, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 94.

[51] Amendment 1, COMMISSION OF THE EUROPEAN COMMUNITIES, Amended Proposal for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector information, COM (2003) 119 Final, 17/3/2003, Available online at:

< http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=174639>, 9/2/2004.

[52] Opinion of the Committee of the Regions of 21 November 2002,on the Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, eEurope 2002: creating a EU framework for the exploitation of public sector information (COM(2001) 607 final) and Proposal for a Directive of the European Parliament and of the Council on the re-use and commercial exploitation of public sector documents (COM(2002) 207 final – 2002/0123 (COD)), 13 December 2002, Available online at:

< http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=174639>, 9/2/2004.

[53] EUROPEAN PARLIAMENT, Report on the proposal for a European Parliament and Council directive on the re-use and commercial exploitation of public sector documentsCOM(2002) 207 – C5‑0292/2002 – 2002/0123(COD)) Committee on Industry, External Trade, Research and Energy, Rapporteur: W.G. van Velzen, A5-0025/2003 Final, 29 January 2003, Available online at:

< http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=174639#347480>, 9/2/2004, p. 5.

[54] K. JANSSEN & J. DUMORTIER, ‘Towards a European Framework for the Re-Use of Public Sector Information’, International Journal of Law and Information Technology, Vol. 11, Nr. 2, 2003, p. 197.

[55] Consideration 9, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 91.

[56] Article 3, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 94.

[57] K. JANSSEN & J. DUMORTIER, ‘Towards a European Framework for the Re-Use of Public Sector Information’, International Journal of Law and Information Technology, Vol. 11, Nr. 2, 2003, p. 198.

[58] Article 4, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 94.

[59] Consideration 6 and 12, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 90 & 91.

[60] This is no obligation. Neither does the directive impose public sector bodies to keep producing a particular kind of documents with the aim of allowing re-use. Article 5, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 94.

[61] M. VAN EECHOUD & J. KABEL, ‘Prijsbepaling voor elektronische overheidsinformatie’ (Pricing Policy for Electronic Public Sector Information), ITeR, Vol. 14, 1998, p. 67.

[62] Ibid, p. 67.

[63] Article 6, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 94.

[64] See among others COMMISSION OF THE EUROPEAN COMMUNITIES, Green Paper on Public Sector Information in the Information Society, Public Sector Information: A key Resource for Europe, Com(1998) 585, 1998, Available online at:

http://www.cordis.lu/econtent/publicsector/greenpaper.html, 27/10/2004, p. 15 and COMMISSION OF THE EUROPEAN COMMUNITIES, Directorate for Telecommunications Information Industries and Innovation, Guidelines for improving the synergy between the public and the private sectors in the information market, Luxemburg, 1989, Available online at:

http://europa.eu.int/information_society/topics/multi/psi/library/index_en.htm, 26/10/2004, p. 9.

[65] Article 7, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 95.

[66] Article 8, Ibid.

[67] Article 10, Ibid.

[68] K. JANSSEN & J. DUMORTIER, ‘Towards a European Framework for the Re-Use of Public Sector Information’, International Journal of Law and Information Technology, Vol. 11, Nr. 2, 2003, p. 200.

[69] Article 11, Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ-L, 31/12/2003, p. 95.

[70] Article 1 paragraphs 2(e) and (f), COMMISSION OF THE EUROPEAN COMMUNITIES, Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 207 Final, 5 June 2002, Available online at:

<http://www.cordis.lu/econtent/psi/psi_policy.htm>, 27/10/2004, p. 16.

[71] SOCIETY OF COLLEGE, NATIONAL AND UNIVERSITY LIBRARIES (SCONUL), News: EU Public Sector Information Directive, ‘Library and information lobby rescues UK academic and cultural future: EU amendment quashed’, 21/2/2003, Available online at:

< http://www.sconul.ac.uk/news/eu_pub_sector_info_directive>, 10/2/2004.

[72] T. BAINTON, ‘The EU Public Sector Information Directive – voting imminent’, 9/1/2003, Available online at:< http://www.managinginformation.com/news/content_show_full.php?id=1071>, 10/2/2004.

[73] Ibid.

[74] Berne Convention for the Protection of Literary and Artistic Works, Paris Text, 24 July 1971. Directive 96/9/EC of 11 March 1996 by the European Parliament and the Council on the Legal Protection of Databases, OJ-L 77, 27/3/1996, p. 20.

[75] Directive 2001/29/EC of 22 May 2001 by the European Parliament and the Council on the Harmonization of Certain Rules Concerning Copyright and Related Rights in the Information Society, OJ-L 167, 22/6/2001, p. 10.

[76] Directive 96/9/EC of 11 March 1996 by the European Parliament and the Council on the Legal Protection of Databases, OJ-L 77, 27/3/1996, p. 20.

[77] B. STRATTON (Secretary to Libraries and Archives Copyright Alliance) in Society of College, National and University Libraries (SCONUL), News: EU Public Sector Information Directive, ‘Library and information lobby recues UK academic and cultural future: EU amendment quashed’, 21/2/2003, Available online at:

< http://www.sconul.ac.uk/news/eu_pub_sector_info_directive>, 10/2/2004.

[78] Article 101 & 102 of the Convention on Fundamental Rights within the European Union, part II of the Treaty Establishing a Constitution for Europe, 29 October 2004, Available online at:

< http://www.europa.eu.int/constitution/constitution_en.htm>9/11/2004, p. 56.

[79] H., BURKERT, Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, Available online at:<http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf>, 9/11/2004, p. 16.


 

 

 

 

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