Opening-up Public Data – a Spur for Democracy and Information Economy

(IPRinfo 2/2012)

Marjut Salokannel
Research Director, LL.D., Adjunct Professor, University of Helsinki

The European Union aims to create a single market for the re-use of public sector data across the Union.

Access to and use of data produced by information technologies in manifold ways has entered the public knowledge during the past years in a rapidly accelerating speed.

Whether we speak about the privacy issues connected with social media or on-line copyright enforcement, it burns down to combining and exploiting data for different purposes.

To an increasing extent the data we use is built upon data produced by the public sector. The apps on our cell phones are often the result of the data produced by the local community or government entity, whether it is weather services or traffic data. The European countries are slowly beginning to fully grasp the potential lying in public data as an untapped economic resource.

The European Commission has been aiming at un-locking the potential lying in public data for years. It has acknowledged the advantageous position of the United States where data produced by the federal government is non-copyrightable and freely usable for any purpose. This has created a striving information market of which Europe can only dream of.

Public sector data in Europe
In its open data strategy published in December 2011 the Commission highlights the importance of how opening-up data produced by local and central government increases democracy and promotes transparency in political decision-making.

According to the Commission it also enhances evidence-based policy making and administrative decision-making at national and EU-level and thus contributes to building up better public services.

In addition to strengthening the civil society and welfare state opening up public data for re-use for commercial and non-commercial purposes has significant positive economic impact on the society as a whole.

The first step toward enhancing re-utilization of public data was the directive on re-use of public sector data in 2003/98/EC (hereinafter the PSI directive). The impact of the directive was assessed in 2008 and a survey was conducted by the Commission in 2009.

Finally the Open Data Strategy includes a proposal for amending the PSI directive. In the following I shall give an overview of this proposal and discuss its implications for Finland.

The primary goal of the directive is to strengthen the commercialization possibilities of public sector data in the EU. The Commission estimates that the total direct and indirect economic value from PSI applications in the EU would be approximately € 140 billion annually.

The directive will later be accompanied by a communication and recommendation with regard to the use and preservation of scientific and research data as well as a comprehensive funding program to support research and development and innovation activities related to opening-up public sector data.

The European countries which currently have the most advanced policies and regulatory framework at place with regard to opening-up of public sector data for re-use are the United Kingdom, the Netherlands, France, Spain and Denmark.

With the exception of Denmark all of these countries have central governmental portals through which public sector data is accessible. UK, Netherlands, France and Norway also have standard open licenses for licensing of PSI.

Commission proposal for amending the PSI directive
The goal of the proposal for amending the PSI directive is to create a single market for the re-use of public sector data across the Union which pre-supposes that same types of data are available on similar terms and conditions irrespective of their national origin. Companies must be able to operate on an equal footing with regard to the re-use of PSI regardless of the place of their headquarters.

According to the original PSI directive public sector organizations (PSO’s) were obligated to open-up their data for re-use if it already was available to the public. The PSO’s did not have to actively make available and promote the re-use of their data.

According to the new proposal this is expected from the PSO’s. The original proposal for the directive covered all documents which are accessible under the national Freedom of Information Law/Act (FOIA) whereas the Danish chairmanship compromise version circulated in March 2012 had restricted the coverage to generally accessible documents.

According to the Commission the purpose of the directive is to create a genuine right to re-use public data for commercial and non-commercial purposes. This means that all public data not specifically exempted by an exception is to be re-usable.

Documents not covered by the directive are those the supply of which is an activity falling outside the scope of the public task of the PSO as defined by law or by other binding rules of the Member State.

Documents for which third parties hold intellectual property rights are also exempted as are documents which are exempted by national FOIA law, e.g., for reasons of national or public security, or statistical or commercial confidentiality.

Documents held by public broadcasters and educational and research establishments are also exempted from the scope of application of the proposed directive. The directive does not in any way affect national data protection laws nor intellectual property rights as provided in the international agreements.

Obligatory charging rule
In addition to obligating the PSO’s to make their documents re-usable the proposal also imposes obligatory charging rules upon the PSO’s. The 2003 directive allowed charging on cost recovery basis plus a reasonable return on investment. The proposal permits charges for re-use that are limited to the marginal costs of reproduction and dissemination.

The Danish compromise proposal permits exceptions to this rule if PSO’s are required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks. The exception given in the original proposal required that the exception is granted according to transparent and verifiable criteria provided in the public interest and subject to the approval of the independent authority. Burden of proving compliance with charging rules lies within public bodies.

As can be imagined this is probably the most controversial provision of the proposed directive and the final outcome is yet far from clear.

PSI directive and memory organizations
The original PSI directive did not cover any cultural organizations but the new proposal extends the coverage of the directive to the so called memory organizations: museums, libraries (including university libraries) and public archives.

These organizations are not, however, under same strict regime as other PSO’s but they are given a great amount of flexibility in applying the directive.

There is no obligation for opening-up their collections for re-use; re-use must only be permitted if the material is already made available to the public, and then only if no third party intellectual property rights are applicable. The memory organizations are also free to set their own charging policies with respect to re-use.

And in Finland?
In Finland the use of public sector data has been increasing rapidly during the past years. The Helsinki Region Infoshare Project which releases all public data from the Helsinki Region for commercial and non-commercial re-use freely is one of the prime examples of opening up public data in Finland. The most recent big data release relates to opening-up geospatial data held by the Cadastre for general use.

At the governmental level opening-up public data has also been in focus. The Government resolution on improving the accessibility and promoting the re-use of digital public information resources was given in March 2011.

According to this resolution PSI should be made accessible cost-effectively from the information holder’s perspective, in accordance with the overall benefit to the national economy and, as a rule, free of charge to the user.

Several working groups have also been analyzing from different perspectives facilitating the re-use of PSI. Most recently the Ministry of Finance working group suggested the re-use of PSI within the government should be made free of charge and the charges applicable for re-use for commercial and non-commercial purposes should be made according to the PSI directive.

From a legal perspective Finland differs from most European countries because of the extensive copyright coverage of public sector databases by the so called catalogue rule. Also those databases which are not protected by copyright or the sui generis database rights are protected by the catalogue protection.

While copyright law permits accessing databases under the Finnish FoiA law it does not permit the re-use of such data without permission from the rightholder. This means that in order to release the data for re-use specific licenses are required. The Ministry of Finance working group suggests an open license along the lines of Creative Commons Attribution license.

Statistical information has been a particular bottleneck in Finland in terms of pricing and accessibility of statistical microdata. The fact that the PSI directive is also applicable to statistical information, unless the information is protected by statistical secrecy, has been absent from the discussion relating to difficulties in accessing statistical data.

The recent proposal for amending the Statistics Act would mean that for research purposes and governmental studies the statistical secrecy would no longer be an issue and de-identified (direct identificators removed) microdata would be available for these purposes. However, to what extent this would obligate the statistics authority to create so called public use files is unclear.

Future vision
There is a strong thrive in Finland at the political, business and civil society level to open-up public sector data for free and un-hindered re-use for commercial and non-commercial purposes.

The recent economic studies and contests relating to commercial applications of public data (Apps for Finland) have clearly demonstrated the enormous possibilities for technological and commercial applications of public data and the subsequent welfare-gains for the national economy.

The social and economic value of open public sector data surpasses the revenue losses for individual PSO’s when they no longer can charge for the use of data. These losses have to be compensated in their budgets by central government.

All in all, from today’s perspective, Finland is well positioned to catch up with their more advanced European counterparts in creating thriving information markets and open government by opening-up public sector data.

References

European Commission – Public Sector Information

* Communication from the Commission to the European parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Open data: An engine for innovation, growth and transparent governance, COM(2011) 882 final, 12.12.2011.
* Proposal for a directive of the European Parliament and of the Council amending Directive 2003/98/EC on the re-use of public sector information, COM(2011) 877 final, 12.12.2011.
* Digital Agenda: Commission’s Open Data Strategy. Commission Memo/11/891, 12.12.2011.
* Vickery, Graham: Review of recent studies on PSI re-us and related market developments, August 2011.

* Antti Poikola, Petri Kola, Kari A. Hintikka: Public Data – an introduction to opening information resources. Ministry of Transport and Communications, Helsinki (2011).

> Julkaisut

* Koski, Heli: Does Marginal Cost Pricing of Public Sector Information Spur Firm Growth? ETLA Discussion Papers no. 1260, 28 September 2011.