On 12 December 2017 the FSFE has provided its input to the Public Consultation on the Review of the Directive on the Re-Use of Public Sector Information (PSI Directive). The Directive 2003/98/EC on the re-use of public sector information is a core element of the European strategy to open up government data for use in the economy and for reaching societal goals. Revised by Directive 2013/37/EU (PSI Directive) in July 2013, it encourages Member States (MS) to make as much material held by public sector bodies available for re-use as possible to foster transparency, data-based innovation and fair competition. The questions of this online consultation cover both the evaluation of the current Directive implementation and the problem, objectives and possible options for the future.

The FSFE submission


Q1: Based on your experience, do you consider that the objectives of the PSI Directive are being met? In particular:

- More data held by public sector bodies, including cultural heritage institutions, has become available for re-use: Slightly disagree

- Public sector information is increasingly becoming a source of innovative services and products: Strongly agree

- Public sector information circulates freely across the EU and cross-border applications based on such information are easy to implement: Slightly disagree

- Exclusive agreements between public sector bodies and third parties are used only exceptionally and are strictly limited to the cases mentioned in the Directive (e.g. necessary for the provision of the public service): Slightly disagree

The FSFE comments:

Since the last revision of the PSI Directive (hereinafter “the Directive”) in 2013 when the data held by libraries, museums and archives has been subjected to the rules of the Directive, there is a need for another revision of the Directive in order to fully unleash the potential of knowledge economy, and to allow everybody to benefit from the resources available to governments funded by taxpayers. The digitisation and its increase in society can be significantly accelerated by opening up the government-held source code as the foundation for a wider and greater re-use of ICT solutions funded by taxpayers' money. As much as any collection from libraries, museums and archives, can be considered a valuable material for re-use in many products such as mobile applications, the same can be argued for source code that can significantly increase the variety of services offered back to the public sector in return.

Q2: Based on your experience, do you agree that the cost-benefit analysis of the PSI Directive is overall positive? In particular:

- The costs borne by the public sector bodies in implementing the Directive (e.g. adapting IT infrastructure, lower income from charges) are offset by socio-economic benefits of re-using data (e.g. creation of new digital applications and products, increased transparency): Strongly agree

- Compliance with the Directive requires better data management processes of public institutions which leads to cost savings and increased operational efficiency: Strongly agree

- In case a request for re-use is rejected and an applicant decides to appeal to the decision of public sector body, the redress procedure is swift, efficient and does not imply excessive costs: Slightly disagree

The FSFE comments:

In the digital age, especially due to a desirability of e-Government that needs to rely on trustworthy and up-to-date ICT infrastructure, the Directive and its meaningful update is needed more than ever. With the uptake of digital services within the public sector, more and more governments are relying on reusable ICT solutions that can be shared and adapted to the needs of a specific public administration. For data-based innovation, it is crucial to consider source code owned by a public administration as a 'document' within the scope of the Directive. It is important to include software developed with public funds into the list of public data that can be made widely re-usable. This will allow private companies to build their services around public infrastructure, and in return to provide better service back to public sector. As a result, both public and private sector benefit from re-use of government-held information, including software.

Q3: Given the technological progress (such as widespread use of internet) and increased awareness (Open Data movement), would you agree that the PSI Directive is still relevant, in particular by ensuring:

- Supply of PSI into the EU single market: Strongly agree

- Sufficient usability (e.g. machine-readability) of data: Strongly agree

- Fair market access (non-discrimination) of all re-users: Slightly agree

- Transparency and accountability of public sector bodies: Slightly agree

The FSFE comments:

While, the economic rationale behind the Directive is obvious, it is important to highlight the link between re-use of public sector information and the 'right to knowledge' established by the Directive. According to recital 16 (2003/98/EC): making public all generally available documents held by the public sector is fundamental for expanding the right to knowledge, which is a basic principle of democracy. Nowadays, when more and more software is principally behind the decisions taken by the public administrations, the algorithmic accountability is a must. Therefore, it is crucial to ensure that algorithms behind public decision-making processes, i.e. software developed with taxpayers' money for public sector bodies, are also made available for re-use, in a similar manner as the rest of data gathered by public sector.

Q4: A wide variety of licensing conditions with varying degrees of limitations for access and use was identified as an obstacle to PSI re-use in the previous evaluation of the Directive. According to your experience, does this variety of different licences and re-use conditions still continue to be a barrier to an efficient and effective re-use of public sector information?

- Slightly agree

The FSFE comments:

According to the Directive, public sector bodies should respect competition rules when establishing the principles for re-use of documents avoiding as far as possible exclusive agreements between themselves and private partners. It is therefore beneficial to follow the non-discriminatory objective of the Directive that encourages the use of open licences that should eventually become common practice across the Union (recital 26, 2013/37/EU). When it comes to source code, there is an extensive list of well-established Free and Open Source Software licences available to consider different needs and wishes for the re-use of source code. Hence the addition of source code under the scope of directive will not go against principles enshrined in the Directive, whilst still leaving room for flexibility when it comes to choosing the appropriate licensing policy case-by-case.

Q5: Based on your experience, do you agree that rules of the PSI Directive are well aligned and complementary to the rules based on other EU legal acts relevant to the area of re-use?

- Directive 96/9/EC (Database Directive): Slightly disagree

- National access regimes (rules which limit access to certain documents on the grounds of national security, commercial confidentiality, etc.): Slightly disagree

The FSFE comments:

Extending the scope of the Directive to include source code as a potentially released public information is in line with some already existing national practices within the member states. In particular, in France source code can be considered as administrative document and must be made available in an open standard format that can be easily reused and processed (LOI n° 2016-1321 du 7 octobre 2016 pour une République numérique). Currently, the recital 9 of the Directive (2003/98/EC) excludes “computer programmes” from the scope of the Directive, however, as the French case shows, there is nothing that impedes publicly funded and owned software to be made publicly available as public sector information. There is no reason why other member states cannot follow this example, and why the Directive needs to exclude “computer programmes” from its scope, as long as public administration is a sole copyright holder of the aforementioned software and no third party copyright is involved.


Q9: To which extent would you agree with the following statements?

- Public sector bodies should make available metadata (sets of data describing other data) in a mandatory formal open standard (e.g.: DCAT-AP): Strongly agree

- Public sector bodies should make available data they hold in a mandatory open standard: Strongly agree

- More needs to be done to encourage public sector bodies to provide dynamic data in real time, including investing in the appropriate technical solutions (e.g. APIs) that increase the usability of the data: Agree

The FSFE comments:

The objective of the Directive is to not only make government-held data available for public at the latter's request but to ensure that this data is actually reusable. Only then will the objective of Directive - that is to benefit knowledge economy - be fulfilled. Open standards and formats are necessary to make sure that the government-held data is reusable by as many recipients of that data as possible, and the Directive shall continue to promote the use of open machine readable standards and formats when making their information re-usable.

Q12a: Do you agree that scientific research results (publications and research data) resulting from public funding should in principle be open access (free of charge online access and unrestricted re-usability)?

- Yes

The FSFE comments:

Scientific research results (publications and research data) resulting from public funding should be Open Access. Furthermore, Open Access requirement shall also expand to software and software tools/applications. This requirement is in line with the European Commission's Guidelines to the Rules on Open Access to Scientific Publications and Open Access to Research Data in Horizon 2020 that specifically encourage projects to provide information and access to specialised software or code in order to validate the results. It is, therefore, necessary that software tools and applications produced during publicly funding research are made available under Free and Open Source Software licences that ensure open access and re-usability of the aforementioned software in the most efficient way (please see:

Q12b: To which extent would you agree with the following statements?

- Documents held by educational and research establishments, schools and universities that are of scientific nature should become available for re-use with as few restrictions as possible (other than those necessary to preserve individuals' privacy, commercial confidentiality and legitimate rights of third parties, etc.): Agree

- There should be a common/harmonised European policy on access to and re-use of scientific information (publications and research data) binding on all research funding organisations and academic institutions in Europe: Agree

The FSFE comments:

European policy on access to and re-use of scientific information (publications and research data) binding on all research funding organisations and academic institutions in Europe shall be based on the rules of Open Access, Open Data, and Free and Open Source Software. Only in conjunction with these open content movements it is possible to achieve truly re-usable and accessible research pool. It is important to stress that Free and Open Source Software is a necessary precondition for verification of research: in order to be valid, research has to be conducted using Free and Open Source Software, as it is the only way to ensure fully transparent access to its methodology. Nowadays, software is an integral part of nearly all modern research from data aggregation to the application of methods and the calculation of final results. Talking about "Open Science" means in this respect the openness of the software, the data and the file formats that are in use.

Q13: To which extent would you agree with the following statements?

- Data generated in the context of the provision of a public task by publicly owned companies or by independent economic operators is currently available for re-use? Disagree

- Data in the area of public transport is currently available for re-use? Disagree

- Data generated in the context of the provision of a predominantly publicly funded public task should be available for re-use irrespective of the public or private nature of the entity providing the service? Strongly agree

The FSFE comments:

Every data gathering that has been funded by the taxpayers should be also be freely accessible by the tax payers. Currently, there are cases, especially with public transport data, when the access and re-usability of data is seriously hampered due to the paid API services that governments provide through special agreements. These agreements usually calculate the cost of service for accessing public transport data depending on the number of use of an application wishing to reuse the data provided through the API service. For a volunteer-driven non-profit projects wishing to use the public transport data and build their own applications on top of that it is especially difficult to be able to afford such user agreement with the public authority or their contracted service. Therefore, it is important for a government to focus on making public transport data available in open, accessible formats that can be re-used by both commercial and non-commercial Free and Open Source Software.

Q14: If there were an obligation to make data generated in the context of the provision of a public task available, such data should:

- Become available for other purposes (please explain below).

The FSFE comments:

When access to government-held data generated whilst providing services of general interest is restricted due to the exclusive arrangements with the service providers (i.e. publicly owned companies or by independent economic operators), it is vitally important for the principles enshrined in the Directive, such as non-discrimination, and promotion of competition to ensure that the data itself is open for further re-use by any interested party wishing to provide an alternative service. It is, therefore, not desirable to lock the data within a special agreement with a service provider contracted by the public body in order to carry out its task of a public interest. The best practice would be to release as most government-held data as possible, and let third parties to add value to it by developing applications on top of released data. Special agreements shall not in any way preclude the re-use of government-held data both in commercial and non-commercial Free and Open Source Software.

Q15b: In order to facilitate re-use of public sector information, would you consider it useful to clarify the relationship between the two directives, so as to ensure that public sector bodies cannot invoke database rights in order to prevent the re-use of public sector information?

- Yes

The FSFE comments:

There may exist a legal unclarity regarding the re-use of data when it comes to sui generis database rights. In order to perform actions on data it is necessary that not only data are made available, but that all the actions necessary to perform the analysis and meta-analysis are permitted. Whilst appropriate licensing mechanisms concerning opening up data can be applied to the data itself, the datasets per se shall also be made re-usable in a manner similar to data licensing. Therefore, it is necessary for the Directive to include a clarification that the re-use of public sector information shall also concern granting appropriate rights for re-use of datasets under sui generis regime (as an illustration, a waiver of database right can be adopted as default legal release tool).

Q16: The PSI Directive distinguishes between the notion of 'access' and that of 're-use'. The Member States are responsible for deciding which documents cannot be accessed (e.g. on the grounds of protection of national security, commercial confidentiality or in cases where existence of particular interest to access needs to be proved). If a document is not expressly excluded from access by national legislation, it becomes automatically available for re-use under the terms of the PSI Directive. In this light, which of the following statements would you support?

- The link between access and re-use is not clear. I find that many documents access to which is currently restricted should be available for re-use.

The FSFE comments:

The ambition of the Directive is limited: there is no obligation for the member states to release their data, but once they decide to do so, the Directive sets the minimum requirements for making that data re-usable. As such, access regimes across member states are inherently diverging because the data is subject to different rules depending on the country. Minimum level of harmonisation for the relationship between Freedom of Information (FoI) laws and the PSI Directive is, therefore, needed in order to bring the EU closer to the cross-border market for public sector information. In particular, there are national difficulties for implementing the Directive across member states, including outdated national FoI laws. Another obstacle for the Directive implementation has also been the absence of guidance in the Directive on how quickly the PSI should be released (especially for real-time data). A clarification in the Directive about the time limits would therefore be desirable.

Activities/PSI_Directive (last edited 2018-01-15 17:29:06 by polina)