A new EU directive on open data and the re-use of public sector information has been published (Directive 2019/1024). The new directive replaces Directive 2003/98/EC on the re-use of public sector information, as amended by Directive 2013/37/EU. The new directive shall be implemented by Member States until June 17, 2021.
The subject matter regulated by the Directive is very complex and requires a number of exceptions to its application, as access to data concerns many other areas, in particular the protection of intellectual property or personal data.
The aim of the Directive is to establish a set of minimum rules governing the re-use and the practical arrangements for facilitating the re-use in order to promote the use of open data and stimulate innovation in products and services.
According to the Directive, re-use means the use by persons or legal entities of documents held by:
- public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced, except for the exchange of documents between public sector bodies purely in pursuit of their public tasks; or
- public undertakings, for commercial or non-commercial purposes other than for the initial purpose of providing services in the general interest for which the documents were produced, except for the exchange of documents between public undertakings and public sector bodies purely in pursuit of the public tasks of public sector bodies.
Document has a broad meaning in the Directive, it means:
- any content whatever its medium (paper or electronic form or as a sound, visual or audiovisual recording); or
- any part of such content.
The Directive regulates, among others, the following topics:
- processing of requests for re-use,
- conditions for re-use,
- supporting the access to research data (‘as open as possible, as closed as necessary’),
- non-discrimination and the rules of exclusive arrangements,
- rules regarding high-value datasets.
What are the rules for exclusive arrangements?
The re-use of documents shall be open to all potential actors in the market, even if one or more market actors already exploit added-value products based on those documents. Contracts or other arrangements between the public sector bodies or public undertakings holding the documents and third parties shall, according to the main rule, not grant exclusive rights. (Special rules shall apply to digitisation of cultural resources. Please see Article 12 (3) of the Directive.)
However, where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years. The exclusive arrangements established on or after 16 July 2019 shall be made publicly available online at least two months before they come into effect. The final terms of such arrangements shall be transparent and shall made publicly available online.
Legal or practical arrangements that, without expressly granting an exclusive right, aim at, or could reasonably be expected to lead to, a restricted availability for the re-use of documents by entities other than the third party participating in the arrangement, shall be made publicly available online at least two months before their coming into effect. The effect of such legal or practical arrangements on the availability of data for re-use shall be subject to regular reviews and shall, in any event, be reviewed every three years. The final terms of such arrangements shall be transparent and made publicly available online.
(In the case of previously concluded exclusive arrangements that do not fulfill the conditions set out in the Directive, the Directive also provides for a deadline for termination, which will ensure the exclusivity for a maximum of 30 years.)
What are the high-value datasets?
High-value datasets means documents the re-use of which is associated with important benefits for society, the environment and the economy, in particular because of their suitability for the creation of value-added services, applications and new, high-quality and decent jobs, and of the number of potential beneficiaries of the value-added services and applications based on those datasets.
The Directive contains the list of thematic categories of high-value datasets that includes
- Geospatial
- Earth observation and environment
- Meteorological
- Statistics
- Companies and company ownership
- Mobility
The Commission shall adopt implementing acts laying down a list of specific high-value datasets belonging to the above categories and held by public sector bodies and public undertakings among the documents to which this Directive applies.
Such specific high-value datasets shall be:
- available free of charge, subject to paragraphs 3, 4 and 5 of Article 13 of the Directive;
- machine readable;
- provided via APIs; and
- provided as a bulk download, where relevant.
Why is this Directive important?
Data is a very valuable asset and a driving force for the digital economy. The use of databases in the public sector, under appropriate legal frameworks, can make a significant contribution to the development and application of new technologies (e.g. artificial intelligence-based solutions). As the Directive states (Preamble, paragraph 9):
Intelligent data usage, including their processing through artificial intelligence applications, can have a transformative effect on all sectors of the economy.
The widespread availability of data can have a number of positive, even unpredictable, positive effects (Preamble, paragraph 16):
Open data policies which encourage the wide availability and re-use of public sector information for private or commercial purposes, with minimal or no legal, technical or financial constraints, and which promote the circulation of information not only for economic operators but primarily for the public, can play an important role in promoting social engagement, and kick-start and promote the development of new services based on novel ways to combine and make use of such information.
The creation and strengthening of the Digital Single Market within the European Union is an important objective, to which this Directive could also make a significant contribution together with, inter alia, the general data protection regulation (GDPR) and the Regulation on the free flow of non-personal data.
The rules regarding exclusive arrangements can serve the stimulation of competition based on data and the limitation of restrictive agreements that provide exclusivity.
