Study to Support the Review of Directive 2003/98/EC on the Re-Use of Public Sector Information

Study to support the review of Directive 2003/98/EC on the re-use of public sector information

FINAL REPORT

A study prepared for the European Commission DG Communications Networks, Content & Technology by:

This study is carried out for the European Commission by

Authors Martina Barbero, Katarina Bartz, Florian Linz, Steffen Mauritz, Patrick Wauters (Deloitte)

Pierre Chrzanowski (Independent consultant) Hans Graux (time.lex) Annette Hillebrand (WIK-Consult) Marc de Vries, Alessandra Innesti, Patricia Ypma, Esther Tenge (Spark Legal Network) Katarzyna Jakimowicz, David Osimo (The Lisbon Council)

Internal identification SMART number 2017/0061

DISCLAIMER

By the European Commission, Directorate-General of Communications Networks, Content & Technology.

The information and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of the Commission. The Commission does not guarantee the accuracy of the data included in this study. Neither the Commission nor any person acting on the Commission’s behalf may be held responsible for the use which may be made of the information contained therein.

ISBN 978-92-79-83169-0 doi: 10.2759/373622

Cat. no. KK-01-18-428-EN-N

Contents

Abstract (EN) ...... 15 Executive summary (EN) ...... 16 The evaluation of the PSI Directive: a positive record in a fast evolving context ...... 16 Looking into the future: options for change for the PSI Directive...... 18 Résumé extrait (FR) ...... 24 Résumé (FR) ...... 25 L’évaluation de la Directive PSI : des résultats positifs dans un contexte en rapide évolution ...... 26 Regard sur l’avenir : possibilités de changement pour la Directive PSI...... 28 1 Introduction ...... 34 1.1 Purpose of the document ...... 34 1.2 Structure of the document ...... 34 2 Approach and methodology for the assignment ...... 35 3 Background of the Directive ...... 39 3.1 Open data and Public Sector Information (PSI) Directive ...... 39 3.2 Opportunities and challenges for the PSI Directive ...... 46 3.2.1 The role of the PSI Directive within the framework of the Digital Single Market polices and legislation ...... 46 3.2.2 The role of the PSI Directive within the fast evolving European Data economy ... 50 3.2.3 The public sector access to privately held data of public interest ...... 53 4 Evaluation of the Directive ...... 55 4.1 Legal analysis of the implementation of the Directive in the Member States ...... 56 4.1.1 National implementation strategies across the EU Member States ...... 57 Implementation strategies ...... 57 National entities responsible for implementation ...... 59 Guidelines or other policy documents that complement or clarify the national implementation measures ...... 61 4.1.2 Potential issues arising from implementation of PSI Directive as amended in 2013 62 Scope of the Directive ...... 62 Bodies governed by public law ...... 68 Link between access and re-use right ...... 69 Re-use of documents held by cultural institutions ...... 70

Formats ...... 71 Dynamic data / APIs ...... 73 Charging provisions ...... 79 Grounds for refusal ...... 84 Redress scheme at national level ...... 86 Practical arrangements ...... 89 Exclusive arrangements ...... 89 4.1.3 Section on interplay between the PSI Directive and other EU legal instruments 93 INSPIRE Directive ...... 93 IPR / Copyright ...... 94 Database Directive ...... 96 Data protection ...... 98 4.2 Overall evaluation of the changes to the Directive ...... 101 4.2.1 Effectiveness ...... 101 Ensuring that competition in the internal market is not distorted ...... 102 Enabling citizens to gain new ways of accessing and acquiring knowledge ...... 117 Enable the creation of jobs related to the digital economy and concerning digital contents ...... 119 4.2.2 Efficiency ...... 121 4.2.3 Relevance ...... 129 4.2.4 Coherence ...... 133 PSI Directive and Data Protection ...... 134 PSI Directive and INSPIRE Directive ...... 140 PSI Directive and other EU legislative measures ...... 142 4.2.5 EU added value ...... 147 4.3 Evaluation of the specific changes of the Directive ...... 151 4.3.1 Extension of scope to cultural data ...... 151 Effectiveness ...... 152 Efficiency ...... 164 Relevance ...... 168 Coherence ...... 170 EU added value ...... 172 4.3.2 Changes to the charging provisions ...... 173

Effectiveness ...... 174 Efficiency ...... 183 Relevance ...... 186 Coherence ...... 188 EU added value ...... 189 4.3.3 Changes in the data format provision ...... 190 Effectiveness ...... 191 Efficiency ...... 194 Relevance ...... 195 Coherence ...... 196 EU added value ...... 196 5 Quantification of the effects of the PSI Directive ...... 197 5.1 Landscaping exercise: Existing approaches and estimates ...... 197 5.1.1 Landscape of different approaches to estimates ...... 197 5.1.2 Landscape of different estimates of the economic value ...... 202 5.2 Data gathered in view of Commission’s data needs ...... 205 5.3 Overview of assumptions and outcomes of the quantitative modelling ...... 218 5.4 Evaluation: Outcomes of the quantitative modelling ...... 223 5.4.1 Number of stakeholders affected ...... 224 5.4.2 Economic value of PSI ...... 226 5.4.3 Number of persons employed ...... 228 5.4.4 Cost savings from PSI for public authorities ...... 229 5.4.5 Additional government revenue ...... 233 5.4.6 Costs of opening up PSI ...... 236 5.4.7 Comparison of costs and benefits ...... 237 6 Possible future policy options ...... 239 6.1 Assessment of problems ...... 239 6.1.1 Introduction and problem tree ...... 239 6.1.2 The problems, their causes, and effects ...... 241 Assessment of the current and future problems ...... 241 Assessment of the causes of the problems ...... 257 Assessment of the effects of the problems ...... 266 6.2 Definition of policy objectives ...... 273

6.3 Definition of policy options ...... 274 6.3.1 Baseline scenario/No intervention ...... 274 6.3.2 Non-regulatory policy option ...... 275 Policy option 1a: Funding of initiatives ...... 275 Policy option 1b: Communication and awareness raising ...... 276 Policy option 1c: Development of technical guidelines / recommendations ...... 276 Policy option 1d: Standardisation efforts ...... 277 Policy option 1f: Stakeholder engagement and coordination ...... 277 6.3.3 Regulatory policy option ...... 277 Policy option 2a: Changes in the scope of the Directive ...... 278 Policy option 2b: Changes in the charging provisions ...... 280 Policy option 2c: Change in the data format provisions and practical arrangements ...... 281 Policy option 2d: Change in the provisions regarding exclusive agreements ...... 283 7 Assessment of policy options ...... 284 7.1 Research data ...... 285 7.1.1 Baseline scenario ...... 285 7.1.2 Non regulatory policy options ...... 288 Funding for initiatives, communication and awareness raising, development of technical guidelines/recommendations, standardisation efforts and stakeholder engagement ...... 288 7.1.3 Regulatory policy options ...... 290 Abolish the current exclusion of documents held by public educational and research establishments (art. 1.2(e)) ...... 290 Partially abolish the exclusion of 1.2(e) in order to allow the re-use of administrative data held by public research and higher education establishments as well as data held in repositories belonging to these establishments...... 293 Introduce a requirement to make available for re-use under specific provisions of the Directive of all research information resulting from publicly-funded research covered by Open Access obligation, regardless of the entity holding the data (public/private/individual)...... 296 7.1.4 Conclusions on the research data policy options ...... 300 7.2 Para-public bodies ...... 301 7.2.1 Baseline ...... 301 7.2.2 Non regulatory policy options ...... 304

Issue guidance to the Member States encouraging the opening up of data held by para-public bodies in certain sectors (in the field of soft options like e.g. Funding for initiatives, Communication and awareness raising (e.g. by flagship projects), Development of technical guidelines/recommendations, Stakeholder engagement) ...... 304 7.2.3 Regulatory policy options ...... 307 Extending the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU or on the basis of a concession, bodies and entities under the default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.) ...... 307 Define a selection of such bodies, based on objective criteria (EU procurement legislation) and introduce a requirement to apply certain provisions of the Directive to the re-use of the data they hold (e.g. no requirement of cross-subsidies, no requirement related to the processing of requests, no requirement of free-of charge pricing) ...... 310 Extend the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply. . 312 Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use (including by entities in the utilities sectors, newly brought within the scope of the Directive). .. 315 7.2.4 Conclusions on the para-public bodies policy options ...... 319 7.3 Charging for re-use ...... 320 7.3.1 Baseline ...... 320 7.3.2 Non regulatory policy options ...... 323 Communication and awareness raising ...... 323 Development of guidelines and recommendations ...... 326 7.3.3 Regulatory policy options ...... 329 Introduce free of charge re-use as the only rule for all documents covered by the Directive ...... 329 Amend article 6 to strengthen the default rule of free of charge re-use and get rid of exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c)...... 333 Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use by the entities to which the Directive applies...... 337 7.3.4 Conclusions on the charging for re-use policy options ...... 341

7.4 APIs and dynamic data ...... 342 7.4.1 Baseline ...... 342 7.4.2 Non regulatory policy options ...... 344 Funding of initiatives ...... 344 Communication and awareness raising ...... 347 Development of technical guidelines ...... 349 Standardisation efforts ...... 351 7.4.3 Regulatory policy options ...... 354 Amend Article 5 to impose a set of obligations on format and distribution ...... 354 As above, but formulated as a soft obligation (e.g. as add-on to existing provision) or only applicable to large public sector bodies ...... 357 7.4.4 Conclusions on the APIs and dynamic data policy options ...... 360 7.5 Exclusive agreements ...... 362 7.5.1 Baseline ...... 362 7.5.2 Non regulatory policy options ...... 364 Communication and awareness raising ...... 364 Development of guidelines and recommendations ...... 367 7.5.3 Regulatory policy options ...... 370 Modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity...... 370 Modifying article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity ...... 374 7.5.4 Conclusions on the exclusive agreements policy options ...... 378 8 Assessment of policy packages ...... 379 8.1 Overview of the policy packages ...... 379 8.2 Assessment of the policy packages ...... 381 8.2.1 Baseline Scenario ...... 381 Outcomes of the quantitative modelling ...... 381 Outcome of the qualitative analysis ...... 397 Qualitative scoring ...... 398 8.2.2 Policy packages 1 and 2 ...... 399 Outcomes of the quantitative modelling ...... 399 Outcome of the qualitative analysis for Policy Package 1 ...... 408

Outcome of the qualitative analysis for Policy Package 2 ...... 412 8.3 Comparison of the policy packages ...... 416 8.3.1 Step 1: Assessment criteria and rating ...... 417 8.3.2 Step 2: Outranking matrix ...... 417 8.3.3 Step 3: Permutation matrix ...... 418 8.4 Preferred Policy Option: Outcomes of the quantitative modelling ...... 420 8.4.1 Number of stakeholders affected ...... 421 8.4.2 Economic value of PSI ...... 422 8.4.3 Number of persons employed ...... 423 8.4.4 Cost savings from PSI for public authorities ...... 424 8.4.5 Additional government revenue ...... 425 8.4.6 Costs of opening up PSI...... 426 9 Conclusions ...... 428 9.1 A look into the past: impact and achievements of the PSI Directive ...... 428 9.2 The way forward: the PSI Directive’s future...... 431 Annex A – Problem trees relating to specific areas ...... 437 Research data ...... 438 Data held by para-public bodies ...... 439 Charging provisions ...... 440 APIs and dynamic data ...... 441 Exclusive agreements ...... 442 Annex B – Sources and equations for the quantification ...... 443 Approach for estimate of costs ...... 446 Approach for extrapolations ...... 447 Annex C – Questionnaires for legal data collection ...... 451 Annex D – Outcome of the legal analysis in the Member States ...... 466 Estonia ...... 467 France ...... 496 Germany ...... 532 Greece ...... 562 Ireland ...... 581 Italy ...... 606 Poland ...... 626

The Netherlands...... 666 Slovenia ...... 704 Sweden ...... 752

Table of Figures

Figure 1 - Historic overview of European policy surrounding PSI re-use ...... 40 Figure 2 - Intervention logic of the PSI Directive ...... 44 Figure 3 - Growth of APIs over time ...... 52 Figure 4 - Open Data Maturity of EU Member States (2005-2020) ...... 103 Figure 5 - Direct and Indirect PSI market size ...... 105 Figure 6 - PSI Market Value per Sector ...... 106 Figure 7 - Value of PSI per sector 2017 ...... 107 Figure 8 - Cost saving public sector EU28 ...... 110 Figure 9 - Cost saving public sector EU28 by government sector ...... 111 Figure 10 - Cost saving EU28 different governmental levels ...... 111 Figure 11 - Additional government revenue EU28 ...... 112 Figure 12 - Additional government revenue per government sector ...... 113 Figure 13 - Number of persons employed (PSI created jobs) EU28 ...... 120 Figure 14 - Outcome of the public consultation question on efficiency ...... 122 Figure 15 - Polish spending plan for fostering re-use of data 2017-2020 ...... 124 Figure 16 - Cost categories for investment on re-use of data ...... 124 Figure 17 - Cost of PSI EU28 ...... 126 Figure 18 - EU Open Data Country Maturity 2017 ...... 127 Figure 19 - Comparison of costs and benefits of the PSI Directive ...... 128 Figure 20 - Concentric shell model for re-use...... 131 Figure 21 - Answers to the public consultation on the PSI Directive EU Added Value ...... 149 Figure 22 - Number of access requests to Polish Cultural Institutions ...... 153 Figure 23 - Demand for Core Data Assets under different pricing regimes ...... 179 Figure 24 - Percentage of datasets available in Open Format on the EDP ...... 192 Figure 25 - Percentage of resources in open-machine readable, proprietary or unknown data format ...... 192 Figure 26 – Relation of different types of data in the data economy ...... 201

Figure 27 – Landscape of estimates for the economic benefits of Open Data (situation today, standardised for EU28+) ...... 204 Figure 28 – Number of different types of stakeholders affected by the PSI Directive (EU28, 2010-2017) ...... 224 Figure 29 – Number of businesses and citizens as potential end-users of PSI-based services (EU28, 2010-2017) ...... 225 Figure 30 – Direct, indirect, and total economic value of PSI (EU28, 2010-2017) ...... 226 Figure 31 – Total economic value of PSI per sector (EU28, 2010-2017) ...... 227 Figure 32 – Total economic value of PSI per sector (EU28, 2017) ...... 228 Figure 33 – Number of persons employed in the (data-driven) economy (EU28, 2010-2017)229 Figure 34 – Public expenditures and cost savings from PSI for public sector bodies (EU28, 2010-2017) ...... 230 Figure 35 –Cost savings from PSI for public sector bodies in different government branches (EU28, 2010-2017) ...... 231 Figure 36 – Total cost savings from opening up PSI per branch of government (EU28, 2017)232 Figure 37 –Cost savings from PSI for public sector bodies at different levels of government (EU28, 2010-2017) ...... 232 Figure 38 –Additional government revenue from PSI (EU28, 2010-2017) ...... 233 Figure 39 –Additional government revenue from PSI in different branches of government (EU28, 2010-2017) ...... 234 Figure 40 –Additional government revenue from PSI (EU28, 2017) ...... 235 Figure 41 –Additional government revenue from PSI at different levels of government (EU28, 2010-2017) ...... 235 Figure 42 –Costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure (EU28, 2010-2017) ...... 236 Figure 43 –Costs and benefits of opening up PSI for different types of public sector bodies (EU28, 2010-2030) ...... 237 Figure 44 - Consolidated problem tree ...... 240 Figure 45 - Growth in repository listings in re3data.org from August 2012 to March 2016 . 243 Figure 46 - Citations to data journals in different fields of science ...... 244 Figure 47 - Main reasons for sharing data ...... 258 Figure 48 - Assessment of licenses in curated data resources ...... 259 Figure 49 - General objective tree ...... 274 Figure 50 – Number of different types of stakeholders affected by the PSI Directive (EU28, 2018-2030) ...... 382 Figure 51 – Number of businesses and citizens as potential end-users of PSI-based services (EU28, 2018-2030) ...... 383

Figure 52 – Direct, indirect, and total economic value of PSI (EU28, 2018-2030) ...... 385 Figure 53 – Total economic value of PSI per sector (EU28, 2018-2030) ...... 386 Figure 54 – Total economic value of PSI per sector (EU28, 2017) ...... 387 Figure 55 – Number of persons employed in the (data-driven) economy (EU28, 2018-2030)388 Figure 56 – Public expenditures and cost savings from PSI for public sector bodies (EU28, 2018-2030) ...... 389 Figure 57 –Cost savings from PSI for public sector bodies in different government branches (EU28, 2018-2030) ...... 389 Figure 58 – Total cost savings from opening up PSI per branch of government (EU28, 2030)390 Figure 59 –Cost savings from PSI for public sector bodies at different levels of government (EU28, 2018-2030) ...... 391 Figure 60 –Additional government revenue from PSI (EU28, 2018-2030) ...... 392 Figure 61 –Additional revenue from PSI for different government branches (EU28, 2018- 2030) ...... 393 Figure 62 – Additional revenue from PSI for different government branches (EU28, 2030) 394 Figure 63 –Additional government revenue from PSI at different levels of government (EU28, 2018-2030) ...... 394 Figure 64 –Costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure (EU28, 2018-2030) ...... 395 Figure 65 –Costs of opening up PSI for different types of public sector bodies (EU28, 2010- 2030) ...... 396 Figure 66 – Impact of the different Policy Packages on the number of different types of stakeholders affected by the PSI Directive (EU28, 2018-2030) ...... 400 Figure 67 - Impact of the different Policy Packages on the total economic value of PSI (EU28, 2018-2030) ...... 401 Figure 68 – Impact of the different Policy Packages on the direct economic value of PSI (EU28, 2018-2030) ...... 402 Figure 69 – Impact of the different Policy Packages on the number of persons employed in the (data-driven) economy (EU28, 2018-2030) ...... 403 Figure 70 – Impact of the different Policy Packages on cost savings from PSI for public sector bodies (EU28, 2018-2030) ...... 404 Figure 71 – Impact of the different Policy Packages on the additional government revenue from PSI (EU28, 2018-2030)...... 405 Figure 72 – Impact of the different Policy Packages on the costs of opening up PSI for all affected public sector bodies (EU28, 2018-2030) ...... 406 Figure 73 – Impact of the different Policy Options on the costs and benefits of opening up PSI for different types of public sector bodies (EU28, 2010-2030) ...... 407

Figure 74 – Impact of the different Policy Packages on the costs and direct benefits of opening up PSI for different types of public sector bodies (EU28, 2010-2030) ...... 408 Figure 75 – Impacts of the different elements of the preferred Policy Package on the number of different types of stakeholders affected by the PSI Directive (EU28, 2018-2030) ...... 421 Figure 76 – Impacts of the different elements of the preferred Policy Package on the total economic value of PSI (EU28, 2018-2030) ...... 422 Figure 77 – Impacts of the different elements of the preferred Policy Package on the direct economic value of PSI (EU28, 2018-2030) ...... 423 Figure 78 – Impacts of the different elements of the preferred Policy Package on the number of persons employed in the (data-driven) economy (EU28, 2018-2030) ...... 424 Figure 79 – Impacts of the different elements of the preferred Policy Package on the cost savings from PSI for public sector bodies (EU28, 2018-2030) ...... 425 Figure 80 – Impacts of the different elements of the preferred Policy Package on the additional government revenue from PSI (EU28, 2018-2030) ...... 426 Figure 81 – Impacts of the different elements of the preferred Policy Package on the costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure (EU28, 2018-2030) ...... 427 Figure 82 - Problem tree concerning research data ...... 438 Figure 83 - Problem tree concerning data held by para-public bodies ...... 439 Figure 84 - Problem tree concerning charging provisions ...... 440 Figure 85 - Problem tree concerning APIs and dynamic data ...... 441 Figure 86 - Problem tree concerning exclusive agreements ...... 442 Figure 87 - Illustrative S-curve development of the efficiency of investments into PSI openness ...... 448

Table of Tables

Table 1 - Current progress concerning the implementation of the data collection tools ...... 35 Table 2 - Current state of the transposition of the PSI Directive ...... 45 Table 3 - Categories of documents excluded under the rules on re-use (10 Member States) 63 Table 4 - Legal requirements on bodies governed by public law (10 Member States) ...... 74 Table 5 - Relevant guidance on the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive ...... 81 Table 6 - Bodies dealing with appeals regarding requests for re-use (10 Member States) .....86 Table 7 - National rules on IPR / Copyright relevant with regard to the re-use of PSI ...... 95 Table 8 – Categories of benefits deriving from the PSI Directive ...... 122

Table 9 - Summary of information on re-use of cultural data contained in the Member States Progress Reports 2015-2017 on the implementation of Commission Recommendations on the digitisation and online accessibility of cultural material and digital preservation ...... 156 Table 10 - Categories of costs for digitisation in Polish museums (in Polish Zloty) ...... 166 Table 11 - Number of requests charged for in Germany (2012-2016) ...... 175 Table 12 - Overview of AIS Marine Traffic prices in Europe ...... 180 Table 13 - Charging thresholds for PSBs in Germany ...... 181 Table 14 –Comparative overview of key existing studies ...... 199 Table 15 –Approaches used in existing studies ...... 202 Table 16 –Types of estimates made and data gathered in relation to the Commission’s data needs ...... 205 Table 17 –Types of quantitative information gathered as part of the interviews in the Member States...... 214 Table 18 – The Policy Options ...... 216 Table 19 – REFIT cost savings ...... 217 Table 20 – Overview of benefits ...... 217 Table 21 – Overview of costs ...... 217 Table 22 –Key assumptions used in the quantitative model ...... 218 Table 23 –Exemplary feedback on the impacts of the Policy Options ...... 220 Table 24 –Key outcomes of the quantitative model ...... 222 Table 25 - Overview of positive impact of data sharing on science ...... 266 Table 26 - Qualitative scoring PO1 ...... 412 Table 27 - Qualitative scoring PO2 ...... 415 Table 29 – Assessment criteria, weighting, and rating of the baseline scenario and the Policy Packages ...... 417 Table 30 – Outranking matrix for the baseline scenario and the Policy Options concerning natural persons ...... 418 Table 31 - Possible permutations of the baseline scenario and the Policy Packages ...... 418 Table 32 - Policy pairings within the possible permutations ...... 419 Table 33 – Coefficients of policy pairings ...... 419

Abstract (EN)

The European Union has entered a new age of digital development —one driven by ever- growing production and consumption of data. “In this new age, not only is there more data than ever before but it is also being generated by a wider variety of sources, making it more revealing”1. Public Sector Bodies in Europe have been generating vast amount of valuable data for centuries. These information however were traditionally “locked” and not shared with other stakeholders for whom these data were also valuable. The 2003 Directive on Re- Use of Public Sector Information (PSI Directive) contributed to change Public Sector Bodies’ approach towards data, making them more open and re-usable. Further modifications in the Directive in 2013 also helped public authorities to become key players in the rising data economy. Today, considering the fast changing nature of the data market and the emergence of new trends, there is a new need of evaluating the performance of the PSI Directive and analysing how to make it relevant for the next 10 years. Based on the best data available, this study provides an assessment of the effectiveness, efficiency, relevance, coherence and added value of the PSI Directive and builds on this to offer some policy options and perspectives for the future.

1 Deloitte Tech Trends 2018,” Enterprise data sovereignty: If you love your data, set it free”, 5 December 2017, https://www2.deloitte.com/insights/us/en/focus/tech-trends/2018/data-sovereignty-management.html

Executive summary (EN)

For over a decade, public sector information (or data) has been more and more in the spotlight. As a result of the development of a data and platform economy, Public Sector Bodies (PSBs) not only realised the value and importance of the data they were holding in their registers, databases and IT systems but also understood that “these data should be set free” as far as possible. At the European level, this awareness translated into the adoption of the Directive on Re-use of Public Sector Information (PSI Directive) in 2003. This text was further modified in 2013 to adjust to a fast changing environment in which data format, price and availability became even more important. For this reason, in 2013 the legislator adopted new rules on:

 Re-usability of data by default  Marginal cost charging  Extension of the Directive to cultural data  Machine readable format Today, five years after the modifications to the original Directive, the discussion on making more data re-usable is not anymore the flagship of a limited number of stakeholders but it has rather developed into “a new normal”. Not only public sector bodies but also private companies and all other types of organisations entered in the debate around making data “free”—accessible, understandable, and actionable2. This “new normal” situation raises a number of questions for the future of legislation in this domain: how has the PSI Directive performed in this fast evolving context? Does it (still) respond to the stakeholders’ needs and expectations? Is it fit-for-purpose when it comes to the next 10 years? Considering the evolving legislative context at the European level (including many relevant initiatives in the Digital Single Market strategy) and the fast- changing economic environment in which more and more data become available (also thanks to the take-up of Internet of Things - IoT technologies), this study looks at the recent past and the recent future of the PSI Directive trying to provide an answer to all these questions. The evaluation of the PSI Directive: a positive record in a fast evolving context The general objectives of the PSI Directive are to ensure that competition in the internal market is not distorted, to enable citizens to gain new ways of accessing and acquiring

2 Deloitte Tech Trends 2018,” Enterprise data sovereignty: If you love your data, set it free”, 5 December 2017, https://www2.deloitte.com/insights/us/en/focus/tech-trends/2018/data-sovereignty-management.html

16 knowledge and to enable the creation of jobs related to the digital economy and concerning digital contents. This assessment shows that, in the past 5 years, the PSI Directive has overall accomplished its mission: there is a general level-playing field for PSI data re-users in the EU and this has brought to the development of new PSI based services and hence the creation of jobs in the data economy. Furthermore, the Directive has helped increasing the transparency of the public sector and the accessibility of information for citizens. These findings on the effectiveness of the Directive are reinforced by similar positive evidence for its efficiency, relevance and EU added value. Concerning the latter, stakeholders are almost unanimous in praising EU intervention on PSI and they consider it more effective and adequate than intervention at the Member States level. Furthermore, the relevance of the PSI Directive is rather unquestioned although new and emerging trends call for an examination of how to make PSI legislation fit-for-purpose in the future. Finally, the PSI Directive achieved all these results and helped stakeholders reaping the benefits of the data economy while being at the same time efficient: without denying the administrative burden and the loss of revenue for Public Sector Bodies which sometimes derived from the implementation of its provisions, the PSI legislation’s balance between costs and benefits is very positive. Indeed, benefits for re-users and for the EU society are such that they largely compensate for the limited costs borne by Public Sector Bodies. The only negative remarks concerning the PSI Directive as a whole emerged with respect to its coherence with other pieces of legislation at the EU level and especially with the Database Directive and the general Intellectual Property framework. More than the coherence of the provisions, the analysis highlights the issues in the contradicting spirit and aims of these regulatory measures. However, it must be noted here that, driven by the Digital Single Market strategy, the Commission is currently reviewing many of these pieces of legislation (and especially the IPR framework) and some of these issues might be solved in the future. Therefore, overall the PSI Directive has shown a very positive track record and is appreciated by stakeholders as a positive achievement for the development of a data economy within the EU. The analysis of the 2013 changes to the Directive also resulted in positive conclusions:

 The establishment of a marginal cost rule for charging had positive effects on the PSI market in Europe and on the data economy overall. Indeed, the marginal cost rule contributed pushing for a decrease in the prices of the data in the EU and an increase in the number of re-users and PSI based services.  The reference to “machine-readable format” has led to an increase in the number of datasets provided in a way that facilitate stakeholders’ re-use. While there is still a debate around standards, APIs and data format in the open data community, the Directive has helped shaping this discussion and has encouraged public sector bodies to improve in this domain. Only the extension of the scope of the Directive to cultural data has been less successful than expected. Due to a limited awareness amongst the main stakeholders and to a number

17 of barriers (such as the costs of digitisation or the uncertainties linked to IPR regimes) the impact of the legislation in terms of re-usability of data has been sub-optimal and the Directive has not brought to revolutionary changes. However, this can also be linked to the early stage of implementation of the legislation itself which is only starting to be known by cultural institutions in the Member States. The overall evaluation of the PSI Directive hence emphasises the extent to which both the legislation as a whole and the 2013 changes have been beneficial to the data economy in the EU and the development of a data market. Naturally, the analysis also identified a number of attention points and needs for the future which were linked both to certain weaknesses of the Directive but also to the evolution of the data market itself. In particular, the following points should be considered:

 The need to make even more data available: as mentioned above “the new normal” is to make all possible data re-usable. This means that the Directive could be extended to new domains in order to increase the availability of data overall and respond to an increasing data consumption.  The need to continue ensuring a level-playing field for all re-users: although the legislation currently establishes equal treatment and fair market practices for all, the emergence of new types of exclusive agreements and other data related practices calls into question its capacity to continue ensuring a level-playing field in the future.  The need to improve re-usability of data from a technical perspective: as this study shows, to make data truly re-usable is important to provide it through appropriate means and in the appropriate format. APIs are nowadays emerging as the standard practice for making dynamic data (and not only) re-usable and this should be considered by the Directive.  The need to further reduce costs of data to increase its re-use: price of data has been lowered since the adoption of the PSI Directive in 2003 and less and less datasets are charged for. However, SMEs and start-ups are still price-sensitive and, also due to the societal benefits of providing data at the lower cost possible, the trend towards zero charges should be strengthened. The impact assessment part of the study looked at these present and future needs and how they could be best addressed by the legislator. Looking into the future: options for change for the PSI Directive The improvement areas identified through the evaluation refer to a number of needs and problems which were further analysed in the impact assessment part of the study. In particular, this analysis focused on:

 Insufficient re-usability of dynamic data due to the lack of technical infrastructures (APIs). The analysis shows that the full potential of public dynamic and real-time information has not been exploited yet as not all PSBs already dispose of APIs or other technical means for making these data available. This has consequences in

terms of innovation and missed opportunities for both the public sector and the European society as a whole: indeed, better exploitation of dynamic data can lead to better public and private services, cost-efficiency gains and even to saving lives.  Market entry barrier for re-users linked to cost of data. The PSI Directive has already helped achieving enormous progresses in this area. However, the most valuable datasets (e.g. geo-spatial, business registers, financial data) are often still charged for. This limits the development of the data economy as less resourced players (such as start-ups and SMEs) struggle to pay the price for the data and therefore they are not given the possibility to develop innovative services and products and experiment with datasets. This implies the existence of market entry barriers which can limit the competition within the PSI market.  Lack of publicly funded data in a number of areas and especially with respect to data held by research establishments and para-public bodies. If making public sector data re-usable is “the new normal” in certain areas, this still does not apply to all kinds of publicly funded information. The research and educational establishments and the para-public bodies and public undertakings carrying out public tasks in the areas of energy and transport for instance are currently not covered by the Directive although a) they are publicly funded and b) re-users see a tremendous potential in the data these bodies hold. Therefore, the existence of “locked data” prevents the PSI market from reaching its full potential and also prevents the development of new services and products.  Distortion of competition linked to emergence or persistence of exclusive agreement practices. Exclusive agreements are not a new phenomenon and the Directive already addresses them in its Article 11. However, their evolution in the past few years and the examples found for this analysis prove that the existing rules might not be sufficient in preventing distortion of competition in the future. For each of these problem areas, this assessment looked in to a number of possible solutions ranging from no action to non-regulatory and regulatory policy options. These solutions are presented in the table below.

Problem area Non-regulatory options Regulatory options

  Limited access to Funding of initiatives, communication Abolish the current exclusion of document held by public educational and and awareness campaigns research establishments research data  Partially abolish the exclusion of 1.2(e) in order to allow the re-use of administrative data held by public research and higher education establishments as well as data held in repositories belonging to these establishments  Introduce a requirement to make available for re-use under specific provisions of the Directive of all research information resulting from publicly-funded research covered by Open Access obligation, regardless of the entity holding the data (public/private/individual).   Limited access to Issue guidance to the Member States Extending the scope of the PSI Directive to cover para-public bodies and data held by encouraging them to open up these private entities carrying out public tasks under the procurement Directive public data 2014/25/EU or on the basis of a concession bodies and entities under the undertakings and default rules of the PSI Directive (marginal cost charging, transparency, data para-public bodies formats, processing of requests, etc.)  Define a selection of such bodies, based on objective criteria (EU procurement legislation) and introduce a requirement to apply certain provisions of the Directive to the re-use of the data they hold (e.g. no requirement of cross- subsidies, no requirement related to the processing of requests, no requirement of free-of charge pricing  Extend the scope of the PSI Directive to cover para-public bodies and private entities (with exclusion of fully private entities) carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply.  Establish a list of 'open by default' datasets which, given their particularly high

innovation potential, should be made available for free of charge re-use (including by entities in the utilities sectors, newly brought within the scope of the Directive).   Costs of data Communication and awareness Introduce free of charge re-use as the only rule for all documents covered by limiting re-use raising the Directive  Development of guidance and  Amend article 6 to strengthen the default rule of free of charge re-use and get recommendations rid of exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c).  Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use by the entities to which the Directive applies.   Limited available Funding of initiatives Amend Article 5 to impose a set of obligations on format and distribution of APIs  Communication and awareness  Amend Article 5 to create a soft obligation (e.g. as add-on to existing raising provision) or only applicable to large public sector bodies  Development of technical guidelines  Standardisation efforts   Exclusive Communication and awareness Modify article 11 to prohibit the conclusion of agreements between the public agreements raising sector bodies and private companies that may lead to 'de facto' exclusivity.  Development of guidance and  Modify article 11 of the Directive so as to introduce a procedural safeguard recommendations preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity

A preliminary analysis of all these options (with respect to effectiveness, efficiency, proportionality, technical, legal and political feasibility) led to discarding most of them and focusing on three policy packages gathering one or more sub-options for each problem area. Baseline scenario: this first package consists of a de fault “no action” option. This would mean that the European Commission would not intervene, not legislatively nor through soft measure, in any of the problem areas considered by the study. The following two policy packages are measured with respect to this baseline scenario as per the Better Regulation Guidelines. Policy package 1 (PO1) – Lower intensity level of intervention: this policy package includes a number of actions for each of the problem areas analysed and especially:

 To unlock data from research data and “para-public bodies” this package would foresee: a) extending the scope of the PSI Directive to research and educational establishments to cover administrative data and research results, focusing on the re- usability of already accessible data and b) extending the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply.  With respect to re-usability of data, this package entails amending article 5 in order to entice public sector bodies to make dynamic data available for re-use immediately after collection via an API.  Concerning issues related to costs of data, the solution proposed by this package is to amend article 6 to limit recourse to exceptions to marginal cost charging: deleting the exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c). Furthermore, a second action would consist in defining a limited set of high-value datasets to be released as open data (charging limited to marginal cost, open license) across the EU on a basis of a Delegated Act.  Finally, with respect to the competition problems related to exclusive agreement, this packages suggests to modify article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity. Policy package 2 (PO2) – Higher intensity level of intervention: this policy package addresses all problems areas identified through a number of key actions:

 Concerning the problems related to locked research and “para-public” data, this policy package foresees two initiatives: a) extending the scope of the PSI Directive to research and educational establishments so as to cover administrative data and research results and to mandate educational and research establishments and research funding bodies to implement open access policies and b) extending the

scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU or on the basis of a concession bodies and entities under the default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.).  Concerning the issues related to re-usability of data and availability of APIs, this packages entails amending article 5 in order to create an obligation to make dynamic data available for re-use immediately after collection via an API.  With respect to barriers for re-use linked to cost of data, this packages foresee the introduction of free of charge re-use as the only rule for all documents covered by the Directive.  Finally, with respect to the issues of exclusive agreements, the package entails modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity. A combined qualitative and quantitative analysis of these three policy packages led to the identification of PO1 – low intensity legislative intervention as preferred policy option. Indeed, through lower intensity of legislative intervention, policy makers could already achieve high benefits without imposing disproportionate burden and/or costs to stakeholders. Amongst the policy package considered this is in fact the most efficient and coherent. Moreover, as pointed out in the qualitative assessment, this option is more politically feasible and more widely accepted by the target groups concerned. Therefore, to address the future challenges for PSI legislation, the policy makers should prefer low intensity legislative intervention by adjusting those aspects of the Directive that needs to be changed while paying attention to not overburden stakeholders with unnecessary requests 5 years only after the latest changes to the text.

Résumé extrait (FR)

L’Union européenne est entrée dans une nouvelle ère de développement numérique, poussée par une production et une consommation de données en constante augmentation. « Dans cette nouvelle ère, non seulement les données sont omniprésentes, mais elles sont aussi générées par un plus large éventail de sources, les rendant plus révélatrices. »3 Les organismes du secteur public en Europe génèrent de nombreuses données précieuses depuis des siècles. Toutefois, ces informations étaient traditionnellement « verrouillées » et n’étaient pas partagées avec d’autres parties prenantes pour qui ces données étaient tout aussi précieuses. La Directive relative à la réutilisation des informations du secteur public de 2003 (Directive PSI) a contribué à changer l’approche des organismes du secteur public envers les données pour les rendre plus ouvertes et réutilisables. D’autres modifications de la Directive en 2013 ont également aidé les autorités publiques à devenir des acteurs clés dans l’économie montante des données. Aujourd’hui, au vu de la nature en rapide évolution du marché des données et de l’émergence de nouvelles tendances, il existe un nouveau besoin d’évaluer les performances de la Directive PSI et d’analyser des moyens de la rendre pertinente pour les 10 prochaines années. Basée sur les meilleures données disponibles, cette étude fournit une évaluation de l’efficacité, l’efficience, la pertinence, la cohérence et la valeur ajoutée de la Directive PSI et se repose sur celle-ci pour offrir certaines options stratégiques et perspectives pour l’avenir.

3 Deloitte Tech Trends 2018, ”Enterprise data sovereignty: If you love your data, set it free”, 5 décembre 2017, https://www2.deloitte.com/insights/us/en/focus/tech-trends/2018/data-sovereignty-management.html

Résumé (FR)

Depuis plus de dix ans, les informations (ou données) du secteur public occupent de plus en plus le devant de la scène. En conséquence du développement de l’économie des données, les organismes du secteur public (OSP) se sont non seulement rendu compte de la valeur et de l’importance des données dont ils disposaient dans leurs registres, bases de données et systèmes IT, mais ont également compris que « ces données devraient être libérées », dans la mesure du possible. Au niveau européen, cette sensibilisation s’est traduite par l’adoption de la Directive relative à la réutilisation des informations du secteur public (Directive PSI) en 2003. Ce texte a été modifié davantage en 2013 pour s’ajuster à un environnement en rapide évolution dans lequel le format, le prix et la disponibilité des données ont pris une importance croissante. Pour cette raison, le législateur a adopté en 2013 de nouvelles règles concernant :

 La réutilisation des données par défaut  La tarification au coût marginal  L’extension de la Directive aux données culturelles  Le format lisible par machine

Aujourd'hui, cinq ans après les modifications apportées à la Directive d’origine, le débat sur le besoin de rendre davantage de données réutilisables n’est plus l’initiative phare d’un nombre d’acteurs, mais s’est mué en une « nouvelle normalité ». Les organismes du secteur public, mais aussi les entreprises privées et les autres types d’organisations sont entrés dans le débat portant sur la « libération » des données, c’est-à-dire les rendre accessibles, compréhensibles et exploitables4. Cette situation de « nouvelle normalité » a soulevé un certain nombre de questions pour la législation future dans ce domaine : quelles sont les performances de la Directive PSI dans ce contexte en rapide évolution ? Répond-elle (toujours) aux besoins et aux attentes des parties prenantes ? Est-elle adaptée aux dix prochaines années ? Au vu du contexte législatif en évolution au niveau européen (y compris de nombreuses initiatives pertinentes dans la stratégie du Marché unique numérique) et de l’environnement économique en perpétuel changement dans lequel de plus en plus de données sont disponibles (aussi grâce à la montée de l’Internet des objets - des technologies IdO), cette étude se penche sur le passé et l’avenir proche de la Directive PSI et tente de répondre à toutes ces questions.

4 Deloitte Tech Trends 2018, ”Enterprise data sovereignty: If you love your data, set it free”, 5 décembre 2017, https://www2.deloitte.com/insights/us/en/focus/tech-trends/2018/data-sovereignty-management.html

L’évaluation de la Directive PSI : des résultats positifs dans un contexte en rapide évolution Les objectifs généraux de la Directive PSI sont de s’assurer que la concurrence sur le marché interne n’est pas faussée, de permettre aux citoyens d’obtenir de nouveaux moyens d’accéder à et d’acquérir des connaissances et de faciliter la création d’emplois en lien avec l’économie numérique et les contenus numériques. Cette évaluation montre qu’au cours des 5 dernières années, la Directive PSI a, en règle générale, accompli sa mission : il existe désormais une égalité générale pour les réutilisateurs de données PSI dans l’UE, ce qui a mené au développement de nouvelles PSI basées sur les services et, par conséquent, à la création d’emplois dans l’économie des données. En outre, la Directive a contribué à augmenter la transparence dans le secteur public et l’accessibilité de l’information pour les citoyens. Ces conclusions sur l’efficacité de la Directive sont renforcées par des preuves positives similaires concernant son efficience, sa pertinence et sa valeur ajoutée pour l’UE. En ce qui concerne ce dernier point, les parties prenantes sont presque unanimes dans leur appréciation de l’intervention de l’UE sur les PSI, qu’elles considèrent plus efficace et adéquate que l’intervention au niveau des États membres. De plus, la pertinence de la Directive PSI est relativement incontestée, bien que de nouvelles tendances émergentes appellent à examiner des moyens de parer la législation PSI pour l’avenir. Enfin, la Directive PSI a obtenu tous ces résultats et a aidé les parties prenantes à récolter les fruits de l’économie des données tout en restant efficace : sans nier le fardeau administratif et la perte de revenus pour les organismes du secteur public, parfois dérivés de la mise en œuvre de ses dispositions, l’équilibre entre les coûts et les bénéfices de la législation PSI est très positif. En effet, les bénéfices pour les réutilisateurs et la société européenne sont tels qu’ils compensent largement les coûts limités endossés par les organismes du secteur public. Les seules remarques négatives concernant la Directive PSI en général concernent la cohérence avec d’autres mesures législatives au niveau de l’UE, en particulier la Directive sur les bases de données et le cadre général de la Propriété intellectuelle. Plus que la cohérence des dispositions, l’analyse souligne les problèmes de contradiction et les buts de ces mesures de régulation. Toutefois, il faut noter que, poussée par la stratégie du Marché unique numérique, la Commission passe actuellement en revue un grand nombre de ces mesures législatives (en particulier le cadre de la PI) et certains de ces problèmes pourraient être bientôt résolus. Par conséquent, la Directive PSI témoigne, en règle générale, d’un bilan très positif et est perçu par les parties prenantes comme une réalisation positive pour le développement d’une économie des données au sein de l’UE. L’analyse des modifications de 2013 apportées à la Directive a aussi entraîné des conclusions positives :

 La mise en place d’une règle de tarification au coût marginal a eu des effets positifs sur le marché PSI en Europe et sur l’économie des données en général. En effet, la règle du coût marginal a contribué à lutter pour une baisse des prix des données

dans l’UE et une augmentation du nombre de réutilisateurs et de services basés sur les PSI.  La référence au « format lisible par machine » a mené à une croissance du nombre d’ensembles de données fournis de manière à faciliter la réutilisation des parties prenantes. Bien que le débat concernant les standards, les API et le format des données dans la communauté des données ouvertes n’est pas encore clos, la Directive a contribué à forger cette discussion et a encouragé les organismes du secteur public à s’améliorer dans ce domaine.

Seule l’extension du champ de la Directive aux données culturelles n’a pas remporté le succès espéré. En raison d’une sensibilisation restreinte parmi les principales parties prenantes et d'un nombre de barrières (comme les coûts de la numérisation ou les incertitudes liées aux régimes de la PI), l’impact de la législation en matière de réutilisabilité des données a été sous-optimal et la Directive n’a pas apporté de changements révolutionnaires. Toutefois, ceci peut aussi être lié au stade précoce de la mise en place de la législation même, qui est seulement en train de se faire connaître par les institutions culturelles dans les États membres. L’évaluation générale de la Directive PSI souligne par conséquent l’ampleur de l’impact positif qu’ont eu la législation en général et les changements de 2013 sur l’économie des données en Union européenne et le développement d’un marché de données. Bien entendu, l’analyse identifie également un nombre de points d’attention et de besoins pour l’avenir liés à certains points faibles de la Directive, mais aussi à l’évolution du marché des données. Les points suivants devraient en particulier être considérés :

 Le besoin de rendre encore plus de données accessibles : comme mentionné précédemment, la « nouvelle normalité » est de rendre toutes les données réutilisables. Cela signifie que la Directive devrait s’étendre à de nouveaux domaines pour augmenter la disponibilité de données en général et répondre à une consommation croissante de données.  Le besoin de continuer d’assurer une certaine égalité pour tous les réutilisateurs : bien que la législation établisse actuellement un traitement et des pratiques de marché équitables pour tous, l’émergence de nouveaux types d’accords exclusifs et d’autres pratiques liées aux données remettent en doute sa capacité de continuer d’assurer l’égalité à l’avenir.  Le besoin d’améliorer la réutilisabilité des données d’un point de vue technique : comme le montre cette étude, il est important de rendre les données réellement réutilisables pour les fournir par le biais de moyens appropriés dans le bon format. Les API émergent actuellement comme pratique standard pour rendre les données dynamiques (et pas seulement) réutilisables, ce qui devrait être pris en considération par la Directive.  Le besoin de réduire davantage les coûts des données pour augmenter leur réutilisation : le prix des données a baissé depuis l’adoption de la Directive PSI en 2003 et de moins en moins d’ensembles de données sont payants. Cependant, les PME et les start-ups sont encore sensibles aux prix et, en partie en raison des

bénéfices sociétaux de la livraison de données au prix le plus bas possible, la tendance vers la gratuité devrait être renforcée. La partie « Évaluation de l’impact » de cette étude se penche sur ces besoins actuels et futurs ainsi que sur la meilleure façon de les adresser par le législateur. Regard sur l’avenir : possibilités de changement pour la Directive PSI Les zones d’amélioration identifiées au cours de l’évaluation réfèrent à un nombre de besoins et de problèmes analysés plus en détail dans la partie « évaluation de l’impact » de l’étude. Plus particulièrement, cette analyse s’est concentrée sur :

 Possibilités de réutilisation insuffisantes des données dynamiques en raison d’un manque d’infrastructures techniques (API). L’analyse montre que le plein potentiel des informations publiques dynamiques en temps réel n’a pas encore été exploité, car les OSP ne disposent pas encore tous d’API ou d’autres moyens techniques pour rendre ces données disponibles. Cet aspect a des conséquences en termes d’innovation et d’opportunités manquées pour le secteur public comme pour la société européenne dans son ensemble : en effet, une meilleure exploitation des données dynamiques peut conduire à de meilleurs services privés et publics ainsi que des gains en matière de rentabilité et même sauver des vies.  Obstacle majeur à l’entrée sur le marché des réutilisateurs lié au coût des données. La Directive PSI a déjà permis d’accomplir des progrès considérables en la matière. Cependant, les ensembles de données les plus précieux (p. ex. données géospatiales, répertoires d’entreprises, données financières) sont encore souvent payants. Cet aspect limite le développement de l’économie des données, car les acteurs disposant de moins de ressources (telles que les start-ups et PME) peinent à payer le prix de données et n’ont dès lors pas la possibilité de développer des services et produits novateurs et d’expérimenter avec des ensembles de données. Ceci implique l’existence d’obstacles à l’entrée sur le marché qui peuvent limiter la concurrence au sein du marché PSI.  Manque de données obtenues grâce à un financement public dans certains domaines et plus particulièrement quant aux données détenues par les établissements de recherche et les organismes parapublics. Si c’est la « nouvelle normalité » de rendre les données du secteur public réutilisables dans certains domaines, celle-ci ne s’applique pas à tous les types d’informations obtenues grâce à un financement public. Les établissements de recherche et d’enseignement ainsi que les organismes parapublics et entreprises publiques effectuant des missions de service public dans les domaines de l’énergie et du transport par exemple ne sont actuellement pas visés par la Directive bien que, d’une part, ils soient financés par des fonds publics et d’autre part, les réutilisateurs voient un potentiel immense dans les données détenues par ces organismes. Par conséquent, l’existence de « données verrouillées » empêche le marché PSI de réaliser son plein potentiel ainsi que le développement de nouveaux services et produits.

 Déformation de la concurrence liée à l’émergence ou la persistance des pratiques d’accord d’exclusivité. Les accords d’exclusivité ne représentent pas un phénomène nouveau et la Directive s’y attèle déjà à l’article 11. Cependant, leur évolution ces dernières années et les exemples trouvés pour cette analyse prouvent que les règles existantes pourraient ne pas suffire à prévenir la déformation de la concurrence à l’avenir. Pour chacun des points problématiques, cette évaluation s’est penchée sur diverses solutions possibles en allant d’aucune action à d’éventuelles mesures réglementaires ou non réglementaires. Ces solutions sont présentées dans le tableau ci-dessous.

Point Éventuelles mesures non réglementaires Éventuelles mesures réglementaires problématique

  Accès limité aux Financement d’initiatives, de Abolition de l’exclusion actuelle des documents détenus par les données de campagnes de communication et de établissements de recherche et d’enseignement publics. recherche sensibilisation.  Abolition partielle de l’exclusion définie à l’article 1.2(e) afin d’autoriser la réutilisation des données administratives détenues par les établissements de recherche et d’enseignement supérieur ainsi que des données conservées dans des dépôts appartenant à ces établissements.  Introduction d’une condition pour rendre réutilisables, selon des dispositions précises de la Directive, toutes les informations de recherche résultant de recherches financées par des fonds publics visées par l’obligation de libre accès, quelle que soit l’entité détentrice des données (publique/privée/individuelle).   Accès limité aux Émission de recommandations aux Extension du champ d’application de la Directive PSI pour viser les organismes données détenues États membres les encourageant à parapublics et les entités privées effectuant des tâches de service public dans par les entreprises rendre ces données publiques. le cadre de la directive 2014/25/EU sur les marchés ou sur la base d’un publiques et les organisme de droit public ou d’entités en vertu des règles par défaut de la organismes directive concernant la réutilisation des informations du secteur public parapublics (facturation des coûts marginaux, transparence, formats de données, traitement des demandes, etc.).  Définition d’une sélection de tels organismes basée sur des critères objectifs (législation européenne en matière de matière de marchés) et introduction d’une condition afin d’appliquer certaines dispositions de la Directive à la réutilisation des données en leur possession (p. ex. pas de condition de subventions croisées, pas de condition relative au traitement des demandes, pas de condition de gratuité).  Extension du champ d’application de la Directive PSI pour viser les organismes parapublics et les entités privées (à l’exclusion des entités complètement privées) effectuant des tâches de service public dans le cadre de la

Directive 2014/25/EU sur les marchés nécessitant l’application des dispositions de la Directive aux données que ces entités décident de rendre réutilisables (tel que c’était le cas pour tous les organismes publics avant l’amendement de 2013). Dans le cas où la réutilisation est autorisée, toutes les obligations de la directive s’appliquent.  Établissement d’une liste d’ensembles de données « publics par défaut » qui, au vu de leur potentiel novateur particulièrement élevé, devraient être rendus gratuitement réutilisables (y compris par les entités des services publics, nouvellement comprises dans le champ d’application de la Directive).   Coût des données Communication et sensibilisation Introduction de la réutilisation gratuite comme seule règle pour tous les limitant la  Développement de conseils et documents visés par la Directive. réutilisation recommandations  Amendement de l’article 6 pour renforcer la règle par défaut sur la réutilisation gratuite et suppression de l’exception décrite à l’article 6.2(b) tout en précisant les coûts éligibles qui peuvent être visés dans les cas prévus par l’article 6.2(a) et 6.2(c).  Établissement d’une liste d’ensembles de données « publics par défaut » qui, au vu de leur potentiel novateur particulièrement élevé, devraient être rendus gratuitement réutilisables par les entités auxquelles la Directive s’applique.   Disponibilité Financement d’initiatives Amendement de l’article 5 afin d’imposer un ensemble d’obligations sur le limitée d’API  Communication et sensibilisation format et la diffusion  Développement de directives  Amendement de l’article 5 afin de créer une obligation souple (p. ex. ajouts techniques aux dispositions existantes) ou pour qu’il ne s’applique qu’aux grands  Efforts de standardisation organismes du secteur public.   Accords Communication et sensibilisation Modification de l’article 11 afin d’interdire la conclusion d’accords d’exclusivité  Développement de conseils et d’exclusivité entre les organismes du secteur public et les compagnies privées recommandations qui pourraient entraîner une exclusivité de fait.  Modification de l’article 11 de la Directive de façon à introduire une garantie procédurale pour prévenir la conclusion d’accords entre les organismes du secteur public et les compagnies privées entraînant un risque élevé d’exclusivité de fait.

Une analyse préliminaire de toutes ces options (concernant l’efficacité, l’efficience, la proportionnalité, la faisabilité technique, juridique et politique) a conduit au rejet de la plupart d’entre elles et à mettre l’accent sur trois mesures politiques rassemblant une ou plusieurs options subsidiaires pour chaque domaine problématique. Scénario de base : cette première mesure est constituée d’une option de « statu quo » par défaut. Cela signifierait que la Commission européenne n’interviendrait ni légalement ni par des mesures douces dans aucun des domaines problématiques examinés par l’étude. Les deux mesures politiques suivantes sont évaluées en fonction de ce scénario de base, conformément aux Lignes directrices pour une meilleure réglementation. Mesure politique 1 (PO1) – Degré d’intervention moindre : cette mesure politique comprend plusieurs actions pour chacun des domaines problématiques analysés et en particulier :

 Pour débloquer des informations de données de recherche et d’organismes « parapublics », cette mesure prévoirait : a) l’extension du champ d’application de la directive PSI aux établissements d’enseignement et de recherche pour couvrir les données administratives et les résultats de recherche, en se concentrant sur la réutilisation des données qui sont déjà accessibles et b) l’extension du champ d’application de la directive PSI aux établissements d’enseignement et de recherche pour couvrir les organismes parapublics et les entités privées effectuant des tâches publiques dans le cadre de la directive sur les marchés 2014/25/EU nécessitant l’application des dispositions de la directive aux données que ces entités décident de mettre à disposition en vue de leur réutilisation (comme c’était le cas pour tous les organismes du secteur public avant l’amendement de 2013). Dans le cas où la réutilisation est autorisée, toutes les obligations de la directive s’appliquent.  En ce qui concerne la réutilisation des données, cette mesure implique l’amendement de l’article 5 afin d’inciter les organismes du secteur public à fournir des données dynamiques immédiatement disponibles à la réutilisation dès leur collecte via une API.  Pour les problèmes liés aux coûts des données, la solution proposée par cette mesure consiste à modifier l’article 6 afin de limiter les recours aux exceptions à la facturation des coûts marginaux : supprimer l’exception décrite à l’article 6.2(b) tout en précisant les coûts éligibles qui peuvent être couverts dans les cas prévus par l’article 6.2(a) et 6.2(c). En outre, une deuxième action consisterait à définir un ensemble limité de données de grande valeur à publier sous forme de données ouvertes (en facturant des coûts limités ou marginaux) en Europe sur la base d’un acte délégué.  Enfin, en matière de problèmes de compétition liés aux accords d’exclusivité, cette mesure propose de modifier l’article 11 de la directive (accords d’exclusivité) afin d’introduire une garantie procédurale pour prévenir la conclusion d’accords entre les organismes du secteur public et les compagnies privées entraînant un risque élevé d’exclusivité de fait.

Mesure politique 2 (PO2) – Degré d’intervention supérieur : cette mesure politique répond à tous les domaines problématiques identifiés au travers de plusieurs actions clés :

 En ce qui concerne les problèmes liés aux données verrouillées et aux données parapubliques, cette mesure politique prévoit deux initiatives : a) l’extension du champ d’application de la directive PSI aux établissements d’enseignement et de recherche pour couvrir les données administratives et les résultats de recherche et le mandat des établissements d’enseignement et de recherche pour mettre en œuvre des politiques de libre accès et b) l’extension du champ d’application de la directive PSI pour couvrir les organismes parapublics et les entités privées effectuant des tâches publiques dans le cadre de la directive sur les marchés 2014/25/EU ou sur la base d’un organisme de droit public et d’entités en vertu des règles par défaut de la directive PSI (facturation des coûts marginaux, transparence, formats de données, traitement des demandes, etc.).  En ce qui concerne les problèmes liés à la réutilisation des données et à la disponibilité d’API, cette mesure implique l’amendement de l’article 5 afin de créer une obligation de fournir des données dynamiques immédiatement disponibles à la réutilisation dès leur collecte via une API.  Pour ce qui est des freins à la réutilisation liés au coût des données, cette mesure prévoit la mise en place de la réutilisation gratuite comme seule règle pour tous les documents visés par la directive.  Enfin, en matière de problèmes liés aux accords d’exclusivité, cette mesure implique de modifier l’article 11 de la directive (accords d’exclusivité) afin d’interdire la conclusion d’accords entre les organismes du secteur public et les compagnies privées qui pourraient entraîner une exclusivité de fait.

Une analyse qualitative et quantitative de ces trois mesures politiques a permis d’identifier PO1 – le degré d’intervention moindre comme étant l’option politique préférable. En effet, au moyen d’une intervention de degré moindre, les décideurs politiques pourraient déjà obtenir d’importants avantages sans imposer de charges et/ou de coûts disproportionnés aux parties prenantes. Parmi les mesures politiques considérées, celle-ci est en fait la plus efficace et la plus cohérente. De plus, comme souligné dans l’évaluation qualitative, cette option est plus réalisable sur le plan politique et plus largement acceptée par les groupes cibles concernés. Par conséquent, afin de relever les défis à venir pour la législation sur les informations du secteur public, les décideurs politiques devraient préférer un degré d’intervention moindre en ajustant les points de la directive qui doivent être changés tout en veillant à ne pas surcharger les parties prenantes avec des demandes inutiles 5 ans seulement après les dernières modifications du texte.

1 Introduction

1.1 Purpose of the document This report is the final deliverable of the study to support the review of Directive 2003/98/EC on the re-use of public sector information (SMART 2017/0061). The purpose of this report is to provide the final results of all tasks of the assignment. This report covers the following:

 Task 1: analysis of the implementation of the PSI Directive and its performance (effectiveness, efficiency, relevance, coherence, and EU added value)  Task 2: legal and economic analysis of the policy options.  Task 3: Forward looking assessment of the baseline as well as of the intervention options and comparison of their impact, both individual and combined. 1.2 Structure of the document The document is structured as follows:

 Chapter 1: Introduction on the purpose and the structure of the document  Chapter 2: Description of the Approach and Methodology adopted for this assignment including the explanation of the economic and legal methodologies adopted  Chapter 3: Background/Context of the Directive  Chapter 4: Evaluation of the Directive both at the general level and with respect to specific 2103 changes  Chapter 5: Quantification of the impact of the Directive  Chapter 6: Potential future actions for policy making  Chapter 7: Analysis of the policy options per each problem area  Chapter 8: Analysis of the legal and economic impact and comparison of different policy packages  Chapter 9: Conclusions The final study report also entails the following annexes:

 Annex A – Problem trees related to specific areas  Annex B – Sources and equation for the quantification  Annex C - Questionnaire for legal data collection  Annex D – Outcome of the legal analysis in the Member States

2 Approach and methodology for the assignment

This section provides an overview of the general methodology and data collection and analysis steps for this study. The project was carried out in three Phases (inception, data collection, and analysis). With regard to the collection of data, the team implemented the following methodological tools:5

 Strategic interviews;  Desk research;  Interviews with stakeholders at the EU and national levels;  Legal data collection;  Workshops with public sector practitioners and academics, as well as with PSI re- users and data economy players;  Online surveys with public authorities, incl. public cultural institutions, education and research bodies, as well as the re-user community; and  Analysis of the public consultation6 that has been launched by the European Commission. An overview of the all these data collection tools is provided below.

Table 1 - Current progress concerning the implementation of the data collection tools

Tool Status Strategic Strategic interviews have been carried out with: interviews  European Parliament;  DG JUST;  DG CNECT;  DG GROW;  DG COMP;  DG SANTE  Publication Office;

5 The data collected through the implementation of the above tools will be analysed through the application of the following analytical methods and processes: Legal analysis; Triangulation; Analysis of costs and benefits; and Multi-Criteria-Analysis. 6 See: https://ec.europa.eu/info/consultations/public-consultation-review-directive-re-use-public-sector- information-psi-directive_en

Tool Status  DG ENER;  DG MOVE;  DG RTD;  JRC;  EDPS;  EuDECo7;  Europeana;  Kennisland8; and  European University Association. Desk Desk research was a continuous exercise throughout this study and has informed research the drafting of e.g. surveys and questionnaires, as well as the draft reporting of findings. The desk research was structured around the indicators that are included in our Analytical Framework. For the purpose of the legal analysis of the PSI Directive in the Member States, a research questionnaire was used (see Annex D). Interviews The team carried out more than 80 interviews with stakeholders at the national level. Interviews have been conducted with the following types of stakeholders:  Ministries and public bodies in charge of public sector data regulation and monitoring of implementation;  Public bodies falling into the scope of the directive;  Museums, libraries and archives;  Para-public bodies;  Universities and research centers; and  Re-users associations. Workshops Representatives of the study team attended the PSI group meeting that was held on 15 November 2017. The team members provided a short presentation, took detailed minutes of the discussions, as well as of its key results and conclusions. The first workshop with research bodies was held on 14 December 2017 with more than 30 stakeholders from the area of research, publishing, open data advocacy and the private sector. As part of two panel sessions, the attendees engaged in a lively, open and fruitful discussion about potentials and challenges related to opening up research data. Members of the study team contributed short presentations, and provided the Commission with took detailed minutes of the discussions, as well as of its key results and conclusions. A second workshop involving data providers and re-users was held in January 2018. The purpose of the workshop was to discuss the technical and non-technical barriers for opening up and reusing the public sector data and the possible ways to improve the situation. Members of the study team moderated the event and took minutes of the discussions which were made available to the European

7 http://data-reuse.eu/ 8 https://www.kl.nl/en/people/paul-keller/

Tool Status Commission for publication on the DG CNECT’s website. Finally, a third workshop was organized on the 15th of March to present the final results of the study to all interested stakeholders. Online The team prepared and disseminated three online surveys. The stakeholders surveys contacted for the dissemination of the surveys are provided in the First Interim Report. Survey on cultural data9 This survey was focused on gathering information for the evaluation and the analysis of the effects of the new provisions that were established in 2013 with respect to data held by museums etc. Survey on research data10 This survey investigated the effects and opportunities linked to the opening up of research data in the framework of publicly funded research. It targeted universities and research centers. Survey for the re-user community11 This survey focused on the beneficiaries of the PSI Directive and mainly concerned:  The provisions on charging (marginal cost) and the effects of possible modifications to this provision;  The possibility of opening up data held by para-public bodies or produced in relation to public contracts;  The possibility of opening up research data;  The question of APIs and dynamic data. Despite significant efforts in dissemination, the response to the survey was disappointing. This can be due to the survey fatigue and the fact that stakeholders (rightly) focused on the public consultation instead. As a consequence, survey’s results were used in this report only as indicative evidence and without any possibility to generalize their insights. Public A public consultation on the review of the Directive on the re-use of Public Sector consultation Information (PSI Directive)12 was carried out from 19 September 2017 to Mid- analysis December 2017. We analysed the qualitative answers to the public consultation as discussed with the European Commission and we provided a preliminary report which spurred from this analysis. The questions included in the public consultation were taken into account when we prepared the interview guides and online surveys in order to avoid duplication. The results of the public consultation were also used to support the analysis all through this report.

9 See: https://ec.europa.eu/eusurvey/runner/culturaldataPSI 10 See: https://ec.europa.eu/eusurvey/runner/ResearchSurvey 11 See: https://ec.europa.eu/eusurvey/runner/PSIReusersSurvey 12 See: https://ec.europa.eu/info/consultations/public-consultation-review-directive-re-use-public-sector- information-psi-directive_en

Tool Status

Legal data The legal assessment of the implementation of the PSI Directive was performed in collection two steps: 1) data collection at national level by a network of legal experts and 2) legal analysis by the legal team of time.lex and Spark Legal Network. Firstly, data was collected through desk research, by a team of national legal experts covering the ten selected EU Member States (DE, EE, EL, FR, IE, IT, NL, PL, SE, SI). This work was done on the basis of a detailed research protocol, including a research questionnaire. The legal experts were asked to complete the research questionnaire collecting data on 1) the national transposition strategies, 2) potential legal issues arising from the implementation of the latest changes of the PSI Directive and, 3) the interplay and overlap between the PSI Directive and other relevant EU legal instruments. Having carried out the legal data collection exercise, the national experts submitted their reports to the legal team, which reviewed them to ensure completeness and consistent quality of the national legal reports. As the national legal reports were completed and quality checked, the legal team fed the results into a comparative document summarising the key issues identified during the legal data collection. This internal document facilitated the comparison between the 10 Member States and the identification of similarities, problems, gaps, overlaps and diverging implementations. Thus, it allowed all results to be bundled into one document, and prepared the ground for the first comparisons to be made, which in turn fed into the legal analysis. After having drafted a preliminary version of the legal analysis, the legal team, including Marc de Vries and Hans Graux, held a two-day internal brainstorm meeting in Brussels. The meeting focused on discussing the outcomes of the data collection at national level, identifying problems / barriers and best practices. Subsequently, and linking with the abovementioned issues, barriers and best practices, the legal team assessed the potential policy options to be considered from both a legal and practical point of view. The results of the meeting were incorporated into the legal analysis, which is included under chapter 4.1. Source: Deloitte

3 Background of the Directive

This section presents the policy context for the re-use of public sector information (PSI) in the EU. The chapter is divided in two parts. First, it provides an analysis of the PSI Directive with regards to the context in which it was developed, explaining its content and the 2013 changes, as well as its current state of transposition and implementation. Second, it outlines trends existing at the EU level that may challenge the re-use of PSI, as well as other contextual factors that ought to be considered in the evaluation of the PSI Directive. 3.1 Open data and Public Sector Information (PSI) Directive “Public bodies produce, collect and hold a wealth of information and content, ranging from statistical, economic or environmental data to archival material, collections of books or works of art”13. Prior to the 1990s this information was difficult to access and usually solely available on paper format. However, the digital revolution that started in the 1990s put the spotlight on the potential of public sector information (PSI). PSI (and data in general) soon started to be seen as important primary material that, if made available for re-use, could become a valuable economic asset and an important resource for economic growth and competitiveness. This perspective on PSI brought to development a number of initiatives at the national, European and international level14. The chart below gives an historic overview of European policy surrounding PSI re-use.

13 See : Proposal for a Directive of the European Parliament and of the Council Amending Directive 2003/98/EC on re-use of public sector information, COM/2011/0877 final - 2011/0430 (COD), http://eur- lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A52011PC0877 14 At the international level, one of the first step in this domain is considered to be the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, signed in Denmark in 1998. See: http://ec.europa.eu/environment/aarhus/

Figure 1 - Historic overview of European policy surrounding PSI re-use

Source: Deloitte 40

At the European level, the first step was the development of a set of guidelines to promote access to information, transparency, and a level playing field already in 198915, but it took another 10 years before the debate on open public data was properly launched. In 1998, the Commission published a Green Paper:16 a consultation paper that played a major role in raising the debate across Europe on the opportunities created by a reuse of PSI in digital format that went beyond the purpose for which it was originally collected. The Green Paper was followed in 2003 by the Public Sector Information (PSI) Directive (2003/98/EC).17 The Directive aimed to facilitate the re-use of PSI throughout the Union by harmonising the basic conditions for making PSI available to re-users, to foster Community-wide products and services based on PSI, and to avoid distortions of competition. The 2003 Directive has had a positive impact with regards to facilitating PSI re-use to foster economic growth. This trend has been experienced in two sectors in particular: legal and administrative and geographical. For instance, since the introduction of the Directive in 2003, the majority of content holders in the legal and administrative sector have made significant changes to their data policies by offering more and more free information on the internet. This change has contributed to a strong market growth, with content holders having reported a 40% increase in the market since 2003 and re-users also confirming a steady increase in income.18 In the geographical sector, download of public information grew in 2007 by 350% since 2002.19 The increasing value of the PSI re-use market has further been supported by the Vickery20 study. It was found that the EU-27 direct PSI re-use market was of the order of EUR 28 billion in 2008 and EUR 32 billion in 2010, while for the EU-27 the total direct and indirect economic impact of PSI re-use is estimated to be up to EUR 140 billion per year. Despite remarkable progress, the PSI Directive 2003/98/EC still proved too limited with respect to two parallel and converging trends in the early 2000s:

 Technological advances related to the so-called web 2.0 showed the potential opportunities related to mixing different data sets, and visualising them through so- called mash-ups. This was further reinforced by the sudden development of the mobile app market, kick-started by the launch of the iPhone ecosystem in 2007.  The emergence of an open government movement positioned open government data as a central, flagship request. The opening up of PSI for re-use was not only

15 European Commission, “Guidelines for improving the synergy between the public and private sectors in the information market”.1989, see: ftp://ftp.cordis.lu/pub/econtent/ docs/1989 public sector guidelines en.pdf 16 European Commission, “Public sector information: A key resource for Europe. Brussels: European Commission” 1998 Report COM(98) 585 Final, see: http://europa.eu.int/ISPO/docs/policy/ docs/COM(98)585/ 17 Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information, see: http://eur-lex.europa.eu/legal- content/EN/ALL/?uri=CELEX:32013L0037 18 COM(2009) 212. 19 Assessment of the Re-use of Public Sector Information (PSI) in the Geographical Information, Meteorological Information and Legal Information sectors, MICUS, 12/2008. 20 Vickery, Graham: Review of recent studies on PSI re-use and related market developments. See: http://ec.europa.eu/newsroom/document.cfm?doc_id=1093

seen as a main enabler of economic growth, but also as having a positive effect on the transparency, efficiency and accountability of governments, thus contributing to citizens’ empowerment. As shown by recent studies, the PSI directive fosters not only the data economy but also open government: a government sharing information with citizens and companies, empowering the population to hold the government accountable and supporting participation in public policies. In addition to these trends, different national rules and practices resulted in Member States reacting differently to the opening up of their public sector information21. Moreover, the Directive did not contain an obligation concerning both access to documents and the re-use of documents. The decision whether or not to authorise re-use was left to the Member States or the public sector body concerned22. Both these aspects soon became a source of legal uncertainty, slowing down the development of the Digital Single Market23. Consequently, as a combination of the elements heretofore mentioned, the 2003 Directive was revised in 2013,24 bringing new changes and amendments to the old Directive:

 Extension of the scope of the Directive to libraries, including university libraries, museums and archives (Article 1). This expansion of scope has positive implications for the equation as a whole, as it widens the scope of application to new (sources of) data.  Linking the right to re-use to the access right. All material that is accessible should be in principle re-usable;  Introduction of a “right of re-use” (Article 3), whereby all documents that are accessible under national legislation related to access are to be re-usable. This has a positive impact on the ability to re-use data.  An increase in transparency and legal certainty by requiring notification / publication of the grounds in the event of refusal. Where the refusal is based on third party intellectual property rights, the public sector body must include a reference to the rights holder, where known. Any decision must also include a reference to the means by which the applicant can appeal (Article 4). This has positive implications for the ability to re-use and particularly for fair re-use conditions.  Defining the limitations of the “public task” of data holders;

21See : Directive 2013/37/EU of the European Parliament and of the Council and amending Directive 2003/98/EC on the re-use of public sector information (Text with EEA relevance), http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013L0037 22 See : Directive 2013/37/EU of the European Parliament and of the Council and amending Directive 2003/98/EC on the re-use of public sector information (Text with EEA relevance), http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013L0037 23 See : https://ec.europa.eu/commission/priorities/digital-single-market_it 24 See : Directive 2013/37/EU of the European Parliament and of the Council and amending Directive 2003/98/EC on the re-use of public sector information (Text with EEA relevance), http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013L0037

 Introduction of transparency obligations in relation to the conditions for re-use, charges to be applied and method of calculation (Art 7). This should help promote fair re-use conditions.  More detailed provisions on charges, ensuring that charges are to be calculated according to objective, transparent and verifiable criteria to be laid down by the Member States. The Directive also introduced a default charging policy at marginal cost (rather than e.g. cost recovery). Since digital reproduction is practically free, marginal cost in most cases means no charges.25 This should help promote fair re-use conditions. However, exceptions to this clause include: o Public sector bodies that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks o Documents for which the public sector body concerned is required to generate sufficient revenue to cover a substantial part of the costs relating to their collection, production, reproduction and dissemination. o Libraries, including university libraries, museums and archives.  Introducing other key measures, such as prohibiting exclusive arrangements, introducing redress procedures, and the promotion of standard and machine- readable formats.  Recognition of the special situation of cultural resources, taking into account the divergences among the Member States in this area. The Directive recognises that a certain period of exclusivity may be necessary in order to give the private party the possibility to recoup its investment. However, any exclusive right exceeding 10 years is subject to review (Article 11). This has implications for the ability to re-use and fair re-use conditions. The figure below shows the intervention logic of the Directive, including for the changes of 2013.

25 Albeit with wide exceptions related to reuse when charges represent a substantial part of the revenues related to the public task.

Figure 2 - Intervention logic of the PSI Directive

In addition to the Directive, several support measures were put in place:

 Guidelines for Member States published in 2014;26  Creation of an open data portal for EU documents and a European data portal infrastructure federating existing open data portals, including support services;  Funding of research and innovation projects.27

Since 2013, the efforts of the European Commission and of the Member States have been focused on transposing and implementing the abovementioned changes brought to the PSI Directive. The table below contains an overview of the current state of the transposition of the 2013 Revised Directive.

Table 2 - Current state of the transposition of the PSI Directive

Type of action taken Member States Adoption of specific measures 13 Member States: providing for re-use of public  Belgium  Ireland sector information  Cyprus  Italy  Germany  Luxembourg  Greece  Malta  Spain  Romania  Hungary  Sweden  United Kingdom Combination of new measures 3 Member States: specifically dealing with re-use  Austria  Slovenia and existing legislation  Denmark Adaptation of the legislative 12 Member States: framework for access to  Bulgaria  Latvia documents to include re-use of  Czech Republic  Lithuania public sector information  Estonia  Netherlands  Finland  Poland  France  Portugal  Croatia  Slovakia Source: Commission28, tabulation by Deloitte Despite the progress made so far and the new changes introduced by the revised Directive in 2013, the evolving circumstances as well as the specific legislative obligation pending on the European Commission call for a review of the PSI legal framework in 2018. As argued by

26 See: European Commission, Guidelines on recommended standard licenses, datasets and charging for the re-use of documents, 2014: https://ec.europa.eu/digital-single-market/en/news/commission-notice- guidelines-recommended-standard-licences-datasets-and-charging-re-use 27 See: https://ec.europa.eu/info/research-and-innovation_en and http://ec.europa.eu/programmes/horizon2020/en/what-horizon-2020 28 See: https://ec.europa.eu/digital-single-market/en/implementation-public-sector-information-directive- member-states

an interviewee, this review could be used for a twofold purpose: (1) address any remaining barriers and challenges for public sector bodies and re-users with respect to PSI and/or any weakness of the existing text, and (2) adapt the PSI Directive to the new direction in which the (fast moving) data economy is growing29. 3.2 Opportunities and challenges for the PSI Directive The 2013 amendments were a clear step forward with regards to the re-use of PSI in the Digital Single Market. However, as mentioned above, an evaluation of the Directive is needed to both assess the strengths and weaknesses of the existing text and to point at the direction the PSI legislation should take to keep up with the transformation of the European Data Economy. This section thus briefly covers two opportunities and challenges concerning the PSI Directive: those existing at the EU legislative level and those related to the evolving needs of the EU data economy. Moreover, the section below also reflect upon the “reverse PSI” approach that is to say the access to privately hold data for reasons of public interest.

3.2.1 The role of the PSI Directive within the framework of the Digital Single Market polices and legislation

As argued during one of the first strategic interviews carried out for this study, the review of the Directive should be taken as an opportunity to think about the role of PSI within the overall context of the Digital Single Market initiative and with respect to the other legislative texts and actions taken by the European Commission and the legislator since the Directive was last modified in 201330. In particular, when discussing the PSI Directive, a number of challenges and opportunities related to GDPR, Copyright, Database Directive, Trade Secrets, INSPIRE and competition law are often pointed out. The General Data Protection Regulation (which replaces Directive 95/46/EU, and applies from 25 May 2018) was adopted after the 2013 PSI Directive. It sets out the conditions for processing personal and sensitive personal data and it applies to both private and public sector bodies in the EU. In theory, the adoption of the GDPR should not affect the implementation of the PSI Directive or the opinion adopted by the Article 29 Working Party on Open Data and Public Sector Information Re-use31.” Indeed, in cases where the public sector information contains or consists of personal data, defined as information relating to an identified or identifiable natural person, the principles and obligations of data protection law must be considered by the PSB concerned. This “primacy” principle of data protection is explicitly recognised by the PSI Directive (see the evaluation, section of Coherence of the PSI Directive and Data Protection). In this respect, the adoption of new data protection measure does not change the nature of the relationship between personal data and PSI.

29 Strategic interviews, European Parliament 30 Strategic Interview 31 See : Opinion 06/2013 on open data and public sector information ('PSI') reuse, Article 29 Data Protection Working Party, 5 June 2013, http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion- recommendation/files/2013/wp207_en.pdf

However, stakeholders have already emphasized the need to receive more guidance on the aspect of protection of personal data under PSI (e.g. in terms of limits to anonymization, opportunity to carry out data protection impact assessments) and they also advocated for an update of the Article 29 Opinion. As the outcome of the publication consultation suggests32, stakeholders expect more to be done in this area and especially in terms of implementation of technical solutions (e.g. anonymization, pseudonimisation), of legal solutions (such as consent oriented or privacy by design rules) but also in terms of development of training for public officials and procedures for organisations to safeguard data protection33. Moreover, the potential fines in the GDPR (up to EUR 20 million EUR or 4% of annual worldwide turnover in extreme cases) could create a significant disincentive for public sector bodies to make data available if a qualification as personal data cannot be categorically excluded. Finally, if new datasets and especially dynamic data become available in the future (through APIs) the question of the preliminary data protection impact assessment will be more and more crucial to ensure that “a balanced approach is followed”34. For all these reasons, the review of the PSI Directive should take into account the latest development in terms of data protection and analyse how these could fit into the PSI legislative framework or how they could affect it. With respect to the challenges brought to the PSI Directive from the perspective of copyright legislation, it must be first noted that copyright rules at the European level are currently in transition. A Proposal for a Directive on Copyright in the Digital Single Market was published in 2016 and is being negotiated in this moment35. In theory, once more, the relationship between copyright and PSI is already very clear: documents subject to copyright rules do not fall into the scope of the PSI Directive and this will probably stand notwithstanding changes in the current copyright regimes. However, as per GDPR, as an interviewee explained, the reality is more complex than the theory and, sometimes, legal uncertainties on copyright rules prevent further opening of data and therefore hamper possibility to re-use it. This is particularly true when it comes to cultural data held by museums, archives and libraries (see chapter 3.2.3) for which, in addition, the Directive on Orphan Work is also relevant36. Therefore, the aspect of copyright and the need for further clarification and simplification of this domain for public sector bodies should be taken into account by the present review.

32 See public consultation analysis 33 See public consultation analysis 34 See : Opinion 06/2013 on open data and public sector information ('PSI') reuse, Article 29 Data Protection Working Party, 5 June 2013, http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion- recommendation/files/2013/wp207_en.pdf 35 See : Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market - COM(2016)593, https://ec.europa.eu/digital-single-market/en/news/proposal-directive-european- parliament-and-council-copyright-digital-single-market 36 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:299:0005:0012:EN:PDF

The Database Directive37 and the Trade Secret Directive38 do also have a close and potentially challenging relationship with the PSI Directive. This latter explicitly aims to create a generic regime that would extend protections for trade secrets. This could potentially incentivise public sector bodies to accord greater attention to trade secrets contained in public sector information, which, in turn, may negatively affect the availability and re- usability of some types of PSI, in particular, PSI that was developed in cooperation with private sector parties. However, the extent to which this risk is real is difficult to assess at this stage, as the period for the national transposition of the Directive in the Member States is not even expired yet and therefore the way the trade secret measures will be interpreted and concretely implemented also by public sector bodies is unknown. The Database Directive on the other hand co-existed with the PSI Directive since it was first adopted in 2003. While the possibility exists for public sector bodies to recur to the Database Directive to protect databases on which “there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents39”, such cases do not seem to recur very often in reality. Nonetheless, the ongoing reviews of both the Database and the PSI Directive can help clarify whether and how often circumstances in which the two Directives are inconsistent exist. Similarly, the review can help assess the relation between the PSI and the INSPIRE Directive 40 . In 2007, the INSPIRE Directive laid down general rules aimed at the establishment of the Infrastructure for Spatial Information in the European Union, for the purposes of environmental policies and policies which may have an impact on the environment. The Directive applies to data held by or on behalf of public authorities (according to the definition provided in Article 3(9)) and to the use of public authorities in the performance of their public tasks. Recital 8 of the INSPIRE Directive establishes that it is without prejudice to the PSI Directive, the objectives of which are complementary. However, it must be made sure that the INSPIRE Directive does not enter into conflict with the PSI Directives, and that any spatial information held by public bodies can be reached according to the rules laid out by the PSI Directives. Furthermore, the review of the PSI Directive offers the chance to further analyse the aspects related to PSI and competition law. This can be done with respect to two notions: the concept of undertaking and the concept of “de facto” exclusivity over data. With respect to the first notion, under current EU competition law, whether or not a public body can be regarded as an “undertaking” for the purposes of competition law depends on whether it engages in an economic activity, regardless of its legal status and the way in which it is

37 See : Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31996L0009 38 See : Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0943 39 See : Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31996L0009 40 See : Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31996L0009

financed.41 Thus, a public sector body within the meaning of the PSI Directives is an “undertaking” to the extent that it operates in a commercial context, but not when it exercises its public law powers.42 This legislative ambiguity can potentially cause confusion and be source of undesirable effects for the PSI Directive. Similarly, as recently mentioned by DG Competition, there is a potential for the PSI Directive to generate “de facto” exclusivity over certain datasets. Indeed, although the Directive states that data are available for re-use by anybody, lack of information or publicity on the availability of certain datasets can lead to a situation in which one player only benefits from the data. This constitutes a distortion of competition and is not compatible with the objectives of the PSI Directive. Therefore, a review of the current legislation can allow to examine this question in light with the most recent developments and examples and to find, if necessary, suitable remedies. Finally, EU legislation in the energy and transport domains should also be taken into consideration. With regard to energy, the latest round of EU energy market legislation - known as the third package - has been enacted to resolve structural problems and improve the functioning of the internal energy market.43 For instance, electricity generators, gas network operators, and energy suppliers are now required to open their data to regulators.44 Moreover, the Energy Package ensures EU citizens the right to access accurate information on their electricity and gas use to help them reduce their consumptions, as well as accessing suppliers’ data to freely choose the supplier of gas or electricity they prefer. 45 On the transport side, the European Commission had already adopted in 2008 an Action Plan to provide efficient access to publicly held road data for digital map providers to the benefit of both the public and private parties involved.46 The Action Plan was followed by the Intelligence Transport System (ITS) Directive47 (adopted in 2010) to accelerate and coordinate the deployment of Intelligent Transport Systems (ITS) in road transport. One of the key priority areas involved optimal use of road, traffic and travel data to guarantee 48 public access to public road data. As all these examples of “PSI-relevant” legislation proves, this Directive should be conceived in a wider legislative and policy context and the review can be an opportunity to streamline the Directive, simplify its apprehension from stakeholders and clarify any remaining doubt or uncertainty related to its relation with other EU level policies.

41 See : Case C-41/90 Hoefner and Elser v Macroton GmbH [1991] ECR I-1979 42 See : Craig & De Burca, EU Law Text, Cases and Materials, fifth ed., (OUP, 2011) 43 See: https://ec.europa.eu/energy/en/topics/markets-and-consumers/market-legislation 44 See: https://ec.europa.eu/energy/sites/ener/files/documents/2010_01_21_the_unbundling_regime.pdf 45 See: https://ec.europa.eu/energy/en/topics/markets-and-consumers/consumer-rights-and-protection 46 See: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52008DC0886&from=EN 47 See: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010L0040&from=EN 48 See: https://ec.europa.eu/transport/sites/transport/files/themes/its/studies/doc/2011_12-availability- public-data-digital-maps.pdf

3.2.2 The role of the PSI Directive within the fast evolving European Data economy

Since the adoption of the Directive in 2013, the Digital Single Market and the European economy in general have not stood still. On the contrary, besides the abovementioned legislative changes, the DSM has seen a fast and tremendous development in terms of data economy, Big Data and Artificial Intelligence (AI). For instance, the value of the European data economy has grown from 285 billion euro in 2015, representing over 1.94% of the EU GDP to 300 billion euro in 2016 and this is expected to grow to 739 billion euro in 202049. Moreover, the number of data companies moved from around 129,000 in 2013 to 134,000 in 201650. Finally, the Open Data Maturity Index 2017 shows that nowadays the majority of the EU Member States qualifies as open data fast tracker or even trend-setter51which was not the case back when the measurement started in 2015. Therefore, major changes in the PSI and general data landscape occurred since the reviewed Directive was negotiated and adopted. This calls for an assessment of how the Directive performs in this new context (which is the objective of the review) but also of what new emerging needs can be identified that could affect the Directive in the near future. In this respect, available evidence allows to highlight two new crucial trends to take into consideration:

 The increase amount of available data worldwide and the increase processing capacity (also linked to AI tools) calling for more and more data to become re-usable as well as for an update of the technical tools used by public administrations to enable access and re-use of data.  The increase concentration of data in “data oligopolies” and in the hands of big market players calling for an even greater attention to fair market conditions and to reduce the remaining obstacles for smaller re-users (SMEs, start-ups, data companies etc.). These trend can be translated in a number of options to be considered for future policy making. For instance, in order to satisfy an even greater appetite for data, new datasets

49 See : European Data Market Study, SMART 2013/0063, Final Report, IDC, Open Evidence, 2017, https://a2528ba5-a-c3c32646-s-sites.googlegroups.com/a/open- evidence.com/download/repository/SMART20130063_Final%20Report_030417_2.pdf?attachauth=ANoY7cpc DWFe5A8Sjp5mUlWmg4zXgvNf3W4MP144z3qNH26vy7kegeGO2yfvlHUu4QdijKdQoZzs25EN- 1vIjdOyJgOiLzd72yZMh2tEX1QOUgWCUupJ3rburRjtWEQljXUnyLw5NoSU04bzNxjeWo4rsVL4kiVIPdfHrD_OnaM Vs1zxZJkKZna29Pyfbj1MYXDsuRax_aRdTkECmMWB0kx43yCBM6CakPzkCz0sFHG75tE93VpnML_ed053nmYP1fS _nfY8IA2l&attredirects=0 50 See : European Data Market Study, SMART 2013/0063, Final Report, IDC, Open Evidence, 2017, https://a2528ba5-a-c3c32646-s-sites.googlegroups.com/a/open- evidence.com/download/repository/SMART20130063_Final%20Report_030417_2.pdf?attachauth=ANoY7cpc DWFe5A8Sjp5mUlWmg4zXgvNf3W4MP144z3qNH26vy7kegeGO2yfvlHUu4QdijKdQoZzs25EN- 1vIjdOyJgOiLzd72yZMh2tEX1QOUgWCUupJ3rburRjtWEQljXUnyLw5NoSU04bzNxjeWo4rsVL4kiVIPdfHrD_OnaM Vs1zxZJkKZna29Pyfbj1MYXDsuRax_aRdTkECmMWB0kx43yCBM6CakPzkCz0sFHG75tE93VpnML_ed053nmYP1fS _nfY8IA2l&attredirects=0 51 See : Open Data Maturity in Europe, Open Data for a European Data Economy, European Data Portal, 2017, https://www.europeandataportal.eu/sites/default/files/edp_landscaping_insight_report_n3_2017.pdf

could be made available under the PSI Directive such as research data and data held by para-public bodies. Information held by research institutions has been excluded so far from the scope of the PSI directive. The reasons are that a large part of this information would be protected by IPR and other third party rights. However, the trend towards open science and open scientific data in the scientific domain has become more and more visible in recent years and has been embraced by the Commission research policy, aptly named “open science, open innovation, open to the world”.52 Open scientific data were part of a pilot initiative in Horizon 2020 / FP7 but have now become the default option under Horizon 2020 grants.53 The European Open Science Cloud initiative54 is also fast advancing towards implementation. Bearing this context in mind and considering the economic and societal benefits of opening up more data for re-use, it is worth asking the question of what would be the effects of extending the PSI Directive to research data. Similarly, data held by contracting entities providing services on the behalf of public sector bodies (and especially bodies providing services in the domains of energy and transports) do not currently fall under the scope of the Directive. However, these bodies possess data which is amongst the most valuable for stakeholders in the data economy (e.g. real-time data on buses routes and trains) and based on which a number of added value services and applications could be provided. Therefore, the potential for extending the scope of the Directive to these type of information could also be legitimately assessed. In general, re-users ask for more and more data and also for more dynamic data and APIs in order to provide their services. A clear sign of maturity of the data economy in fact is the worldwide surge in availability of application programming interfaces (APIs), which provide controlled access to data55. Today there are more than 15,000 APIs published, and for instance “nearly two-thirds of telecom operators have launched or are developing APIs […] to grant large global brands access to non-sensitive customer data”56.

52 See : https://ec.europa.eu/digital-single-market/en/news/open-innovation-open-science-open-world-vision- europe 53 Commission, 2016. “H2020 Programme: Guidelines on FAIR Data Management in Horizon 2020”. Versión 3.0 26 July 2016, http://ec.europa.eu/research/participants/data/ref/h2020/grants_manual/hi/oa_pilot/h2020-hi- oa-data-mgt_en.pdf 54 See : https://ec.europa.eu/research/openscience/index.cfm?pg=open-science-cloud 55 See : http://nordicapis.com/tracking-the-growth-of-the-api-economy. 56 See : http://www.forbes.com/sites/mckinsey/2014/01/07/ready-for-apis-three-steps-to-unlock-the-data- economys-most-promising-channel/#4ab71db89e5e

Figure 3 - Growth of APIs over time

Source: Ruben Verborgh, Ghent University – iMinds, See: http://rubenverborgh.github.io/WebFundamentals/web-apis/#web-api-growth The trend towards an API economy is strengthening over time and should not be overlooked by the PSI Directive. Indeed, although a number of countries are already providing data through APIs57, this is not yet the norm and a non-homogeneous availability of dynamic data and APIs in Europe could hamper the Digital Single Market. Finally, the surge in the concentration of data in a small number of players might also have negative effects on the harmonious development of the data economy in the EU. For this reason, particular attention should be paid to ensuring a level playing field and to laying down the economic and legal conditions in which smaller players can also prosper. From this perspective and given the elasticity of the PSI demand to price58, the question of the price of data becomes central. Indeed, as argued by one of the stakeholders consulted, “price of data is a primary barrier to the entry of the market for SMEs and start-ups and bigger players might have an interest in keeping this fence59”. Although the 2013 Directive made it compulsory that public sector information should be at the marginal costs as general rule, some exceptions remain nonetheless for:  Libraries (including university libraries), museums and archives;  Public sector bodies that are required to generate revenue to cover a substantial part of their costs, and  Documents for which the public sector body concerned is required to generate sufficient revenue to cover a substantial part of the costs related to their collection, production, reproduction and dissemination.

57 For instance France is developing the concept of “government as platform” and therefore pushing for developing a number of administrative APIs for the most important datasets (e.g. fiscal data) and also accessible by other public administrations. See : www.data.gov.fr 58 The cost of Geospatial Open Data, Peter A. Johnson, Renee Sieber, Teresa Scassa, Monica Stephens, Pamela Robinson, Transaction in GIS, Wiley, January 2017, http://onlinelibrary.wiley.com/doi/10.1111/tgis.12283/full 59 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document

For these cases, the price should be decided based on objective, fair and transparent criteria decided at the national level. If the different Member States do not take a consistent approach to the selection of these criteria, distortions to the DSM could occur. Moreover, if data price varies too much between Member States, the overall competitiveness of the European Data Economy could be hampered. Therefore, the review of the Directive could also be an opportunity to re-examine the question of charging and pricing of data within the context of a more mature data economy in order to verify whether fair market conditions apply to everybody.

3.2.3 The public sector access to privately held data of public interest

The Review of the PSI Directive is also a good occasion for discussing the so-called “reverse PSI”, that is to say the public sector access to privately held data of public interest. Data generated and stored by the private sector can be immensely beneficial for citizens and for the public interest in general. There are many examples where companies decide to make their data available, sometimes for free in the form of “data philanthropy”, “data collaborative” and “data grants”, other times by reselling data-driven services to statistical offices. One classical example is data from mobile phone: companies such as Vodafone and Orange participate in global initiatives for development by providing researchers free access to their data in order to map out the spread of malaria, legionnaire and Ebola in developing countries; the same companies sell data analytics services related to citizens mobility to European statistical offices in order to improve census data or better manage traffic. In fact, many European statistical offices (e.g. Statistics Netherlands or ISTAT60) are already today using these data. 61 The main advantages of using data held by the private sector lie in:

 Reducing the costs of data collection for statistical offices, and the administrative burden, by using already available data rather than surveying companies and individuals;  Making new data available, through the provision of real-time data for instance over population mobility;  Removing bias deriving from self-reporting data in favour of observational data. The limitations of self-reported data are well known and strongly limit our understanding of human life. At the same time, privately held data are not a low hanging fruit. They cannot be immediately used as a substitute of official statistics, typically because of their non-universal

60 See : “Study on (Big) Data Analytics for Policy Making”, Deloitte, 2016, https://joinup.ec.europa.eu/document/big-data-analytics-policy-making-report 61 For these examples and further analysis, see The Lisbon Council and IDC, Opening Up Private Data for Public Interest, Story 1 of the Update of the European Data Market SMART 2016/0063. (Luxembourg: European Commission, 2017). Available at http://datalandscape.eu/data-driven-stories/opening-private-data-public- interest

coverage. They need significant resources to be used. Indeed, while there is evidence about the cost savings, the impact in terms of large-scale disruptive innovation remains incipient and most cases projects are still at the level of feasibility or pilot. The main barriers for companies to share data with government lie not only in a legitimate reluctance over giving up commercially sensitive data, but also because of concerns related to privacy infringement risks, related to the costs and risks of anonymisation techniques. Finally, companies are more likely to share data when they are aggregated and shared only with an individual organisation for a specific purpose, rather than as open data. In conclusion, companies share data for the public interest, sometimes as a philanthropic effort, but mostly (in Europe) as a market-driven service. As such, the PSI model is hardly compatible with how private business share data: companies differentiate between access and reuse; they adopt discriminatory access models allowing access and reuse on a case by case basis; and they typically limit clearly the purposes and limitations of data reuse. These are only some of the trends and opportunities that could be further explored within the framework of the PSI Review. In the next chapter, the report will start by assessing the baseline for the Directive, that is to say evaluating its current performance, before digging into the topic of what vision the PSI Directive should bring in the future

4 Evaluation of the Directive

This chapter presents the outcome of the evaluation of the PSI Directive, both at the general level and with respect to the 2013 changes. Moreover, the chapter also offers a legal analysis of the implementation of PSI legislation in 10 selected Member States. The following section provides the results of analysis underpinning the evaluation of the Directive and focusing in particular on the main changes brought to the text in 2013 and especially in terms of scope, charging and format of data. To carry out this analysis, in line with the new Better Regulation Guidelines62, the team will duly take into account the principles of comprehensiveness, proportionality, independency, transparency and evidence-based evaluation which are key for the quality of the outcome63. For Task 1 of this assignment – Evaluation of the Revised PSI Directive, he team will assess the effectiveness, efficiency, relevance, coherence and EU added value of the specific provisions changed in 2013 and of the Directive overall. These criteria are defined according to the Better Regulation Guidelines:

 Effectiveness: this analysis “considers how successful EU action has been in achieving or progressing towards its objectives, using appropriate points of comparison (including from a prior impact assessment)”64. The intervention logic of the 2013 Directive presented in Chapter 3.1 will guide this assessment.  Efficiency: “it considers the relationship between the resources used by an intervention and the changes generated by the intervention (which may be positive or negative)”65. For this criterion the team will consider the costs borne by public sector bodied falling under the scope of the Directive and the benefits for them, for re-users and for the society overall.  Relevance: this criterion “looks at the relationship between the needs and problems in society and the objectives of the intervention and hence touches on aspects of design. Things change over time”66. Based on the changes in the European Data Economy as well as the challenges brought to the PSI Directive by other pieces of EU

62 Commission Staff Working Document, Better Regulation Guidelines, 7 July 2017, https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf 63 Page 56, Commission Staff Working Document, Better Regulation Guidelines, 7 July 2017, https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf 64 Page 60, Commission Staff Working Document, Better Regulation Guidelines, 7 July 2017, https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf 65 Page 60, Commission Staff Working Document, Better Regulation Guidelines, 7 July 2017, https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf 66 Page 61, Commission Staff Working Document, Better Regulation Guidelines, 7 July 2017, https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf

legislation, the team will consider to what extent the PSI Directive is still the best answer to the problems identified.  Coherence: this criterion “should provide evidence of where and how EU, international and national interventions are working well together or point to areas where there are tensions (e.g. objectives which are potentially contradictory, or approaches which are causing inefficiencies)”67. This assessment will build on both the legal analysis and the data collection at the Member States level.  Added-Value: “the evaluation should consider arguments about the value resulting from EU interventions that is additional to the value that would have resulted from interventions initiated at regional or national levels by both public authorities and the private sector”68. The team will hence test whether alternative policy actions at different governance levels could have achieved the same objectives and results of the PSI Directive. However, before embarking in the analysis of the above-mentioned criteria, the next section provides a legal and comparative analysis of how the Directive has been implemented in 10 different Member States (See Methodological section). Also based on this legal assessment, the following section on the evaluation will provide a critical look at the PSI Directive 5 years after its 2013 review and it will deliver final conclusions on its performance and possible recommendations on the way forward. 4.1 Legal analysis of the implementation of the Directive in the Member States This section presents the results of the legal analysis with regard to the evaluation of the implementation of the PSI Directive in ten selected EU Member States (Estonia, France, Germany, Greece, Ireland, Italy, the Netherlands, Poland, Slovenia, and Sweden). It provides an overview and a comparative analysis of the relevant legal frameworks in the abovementioned Member States, with regard to: 1) the national implementation strategies of the PSI Directive (section 4.1.1); 2) potential issues arising from the changes brought about by the 2013 amendment (section 4.1.2); and 3) the interplay between the PSI Directive and other relevant EU legal instruments (section 4.1.3).69 More specifically, section 4.1.1 includes an overview of the national implementation strategies across the 10 EU Member States, providing a detailed narrative with regard to: a) the manner in which the PSI Directive and its modifications in 2013 entered the national legal order in the Member States covered; b) the national entities responsible for

67 Page 62, Commission Staff Working Document, Better Regulation Guidelines, 7 July 2017, https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf 68 Page 63, Commission Staff Working Document, Better Regulation Guidelines, 7 July 2017, https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf 69 Full references of the sources provided in the sections below, can be found in the national research questionnaires included in Annex C.

implementation; c) guidelines or other policy documents clarifying the implementation measures at national level. Section 4.1.2 contains detailed information on specific issues arising from implementation of PSI Directive as amended in 2013. Specifically, this section provides a thorough description of the following issues: a) scope of the Directive; b) bodies governed by public law; c) link between access and re-use right; d) re-use of documents held by cultural institutions; e) formats; f) dynamic data / APIs; g) charging provisions; h) grounds for refusals; i) redress scheme at national level; l) practical arrangements; and m) exclusive arrangements. For the sections on the scope of the Directive, transparency obligations and grounds for refusals, a paragraph on best practices is included as well. What follows under section 4.1.3 is an overview and key conclusions on the interplay and overlap between the PSI Directive and other relevant EU legal instruments (INSPIRE Directive, IPR legislation and Copyright Directive, Database Directive and data protection rules) at national level. Within this section, the subsection on IPR/Copyright contains also a paragraph on best practices. This information is also further elaborated on in the section on the coherence of the PSI Directive with other relevant EU law (4.2.4 Coherence). Lastly, each section provides conclusions on the basis of our comparative analysis.

4.1.1 National implementation strategies across the EU Member States Implementation strategies In five Member States (Estonia, Germany, Greece, Slovenia and Sweden), the 2003 Directive was implemented by a legislative act which was then amended in order to reflect the 2013 changes. In the other five Member States (France, Ireland, Italy, the Netherlands and Poland), the 2013 modifications were implemented by a separate law to the law which implemented the 2003 PSI Directive. In Estonia, the 2003 PSI Directive entered into force in the national legal framework with the first Public Information Act. The same Act was amended in order to implement the modifications of the PSI Directive in 2013. In Germany, the 2003 Directive was implemented in the national legal order by an Act of Parliament, Federal Act on the Re-Use of Public Sector Information (IWG), and the 2013 amendments were introduced into the German legal order by amending the existing IWG. This law does not regulate the access to information, merely its re-use. The right to access information is explicitly excluded from the scope of the IWG and is regulated by different acts. In Greece, the PSI Directive was implemented in 2006 by adopting the Law on the re-use of public sector information and the regulation of issues within the competency of the Ministry of Interior, Public Administration and Decentralisation. This law was amended in 2014 by Law on Open supply and re-use of public sector documents, information and data, to adapt

national legislation to the provisions of Directive 2013/37/EU, further enhancing transparency, regulating matters relating to the Entry Examinations of the National School of Public Administration and Local Government and other provisions. In Slovenia, the 2003 Access to Public Information Act (APIA) did not include the right to re- use (as Slovenia was not an EU Member State at that time). Both the 2003 PSI Directive and the 2013 amendments were implemented with amendments to the APIA. Stakeholders were strongly involved in the implementation process (2013 amendment) through meetings and seminars with the Ministry of Public Administration. In Sweden, the regulation that implemented the PSI Directive only applied to government agencies. To ensure proper implementation of the Directive into Swedish law, the Swedish government appointed a group within the government to investigate how a proper implementation of the Directive could be ensured. The final report of this group resulted in the Swedish PSI-Act. The 2013 modifications were implemented through an Act which made changes to the Swedish PSI Act. In France, both an “Ordonnance” and a Decree amending an existing law from 1978 were passed in order to transpose the 2003 PSI Directive. The adoption of laws in 2015 and 2016 has introduced the principles of “cost-free by default” and “Open Data by default”. In Ireland, both the 2003 Directive and the 2013 amendments were introduced into the national legal order by means of Ministerial Regulations. The 2014 Freedom of Information Act provides for a publication scheme, moving towards a more pro-active sharing of information from the public sector. In Italy, both the 2003 Directive and its 2013 amendments were introduced adopting two dedicated Decrees on the re-use of public sector information. Furthermore, through the adoption of a new law on the re-organisation of the regulations concerning the obligations of publicity, transparency and diffusion of information by public administrations (2013), as amended by the Freedom of Information Act (2016), the right to access has been broadened as well as the scope of the re-use enlarged. In the Netherlands, the provisions of the 2003 PSI Directive were initially included in the Dutch Act on Public Access to Government Information. However, in 2015, the Act on re-use of public sector information was adopted. This Act incorporated both the rules from the 2003 PSI Directive and its 2013 amendments. The decision to adopt this Act was based on the recognition that apart from the similarities between making government information public and allowing for the re-use of public sector information, there are also differences. In Poland, rules on re-use of public sector information were implemented in 2011, meaning the implementation deadline was not complied with. The 2013 amendments were transposed by adopting the 2016 Re-use Act. The new Act repealed the provisions on re-use from the Act on access to public information and introduced conflict-of-law rules defining the relationship between these two laws. Conclusions

Among the ten EU Member States covered, the PSI Directive has mostly been implemented through Freedom of Information Acts and not in the framework of Competition Law, as might have been expected given the close link between re-use and competition rules. This might mean these sets of rules have not been aligned, which in turn may create tension (e.g. regarding pricing or exclusivity arrangements, as will be further examined in the sections below). While this could conceivably create consistency challenges, this is a logical consequence of the current policy approach that treats PSI re-use in relative isolation, rather than as an inherent part of, for instance competition law, freedom of information, intellectual property rights, or as public sector data lifecycle management in general. National entities responsible for implementation In three Member States (France, Greece and Poland), there is a specialised Ministry responsible for implementation in the national legal order (e.g. the Ministry of Administrative Reform and e-Governance in Greece). In three Member States, the implementation task is given to the Ministry of Economy or similar entities (e.g. Ministry of Economy and Energy in Germany, the Minister of Public Expenditure and Reform (formerly the Minister of Finance) in Ireland, and in Sweden, in theory the entity in charge of implementing the Directive is the executive powers that prepare Bills for the Parliament but in practice it is the Department of Finance. In two Member States (Italy and Slovenia), the responsible entity is the Ministry of Public Administration, which in Italy is called Ministry of Public Administration and Simplification. Finally, in the two remaining Member States, the entities responsible are: the Ministry of Justice in Estonia and the Ministry of the Interior in the Netherlands. In Estonia, the Ministry of Justice is responsible, with support from the Ministry of Economic Affairs and Communications. There are other implementing entities, namely: the Estonian Data Protection Inspectorate, the supervising agency of the Public Information Act, and the Information System Authority. In France, the Minister of State for the Digital Sector is responsible for implementation in the national legal order. Etalab (the French task force for Open Data) is responsible for the coordination of public data opening and sharing policy. In Germany, the Federal Minister for Economy and Energy is responsible. In Greece, it is the Ministry of Administrative Reform and e-Governance, Directorate General for Reform and e-Governance, Department of Transparency, Open Government and Innovation. In Ireland, the responsible entity is the Minister of Public Expenditure and Reform (formerly Minister of Finance). The 2005 Regulations were passed by the Minister of Finance, and the 2015 amendments by the Minister of Public Expenditure and Reform. In Italy, the Ministry for Public Administration and Simplification is responsible for the implementation.

In the Netherlands, it is the Ministry of the Interior and Kingdom Relations. However, under the new government established in November 2017 (Rutte III), some data holders (in particular in the field of spatial data) have been moved to the Ministry of the Interior, possibly allowing for more synergy between policy making and actual implementation and execution. In Poland, the Ministry of Digital Affairs is responsible for the implementation. The Minister of Culture and National Heritage was responsible for implementation of the regulation on the maximum rates of charges for re-use imposed by state museums and self-governing museums. In Slovenia, the Ministry of Public Administration is responsible for the implementation. In Sweden, the executive powers (“Regeringen”) that prepare Bills for the Parliament, are responsible for implementation. However, both the Swedish PSI Act and the latest amendments to it were prepared by the Department of Finance. Conclusions With regard to the Ministry responsible for implementation of the PSI Directive, in all the 10 Member States covered under this study, various governmental ministries, with different powers and tasks, are responsible for the implementation of the Directive. Our research results show a fragmented landscape, which may have a potential impact on the effectiveness of the implementation. However, this should be seen in perspective, as a lot of other factors affect this as well (e.g. a centralised implementation strategy, a government long-term vision). A key support factor for PSI re-use is the extent to which public sector bodies receive support and resources (in terms of funding, expertise, technology solutions, implementation support etc.) from the competent national entity. Where PSI is treated simply as a legal duty to be fulfilled by public sector bodies, implementation can suffer since PSI re-use then constitutes an obligation for public sector bodies which is added to their primary tasks. In other words, it becomes a burden that is not seen as creating a benefit to them. In contrast, where support and resources are made available to them, the additional burden is mitigated and better synergies can be created. This can be seen in the text box below, which includes some examples that serve to understand the macro-environment that is crucial to comprehend the level of success of re-use. It should be noted that DK is not part of the ten Member States in which legal data collection was carried out.

In 2012, in a brief nine-month period Denmark managed to put in place the main building blocks for a System of Key Registers. All Key Registers (which are fundamental to re-use) are available and the pricing issues was dealt with by allowing agencies to finance their re-use mechanisms with money taken from the State budget. This was possible because the Ministry of Finance, which has financial power, is in charge of the Key Registers’ dossier, and it was seen as a potential cost-saving system. If charging would be maintained, this would mean costs would just be re-shuffled among the government agencies and there would be transaction costs. In contrast, in the Netherlands, the Ministry of Interior does not create or manage public

service information to the same extent. Moreover, the Ministry does not have the financial resources to compensate public sector bodies for the costs of allowing for the re-use of PSI, or to encourage these bodies to allow re-use. This meant that they were not able to establish an economically or practically supportive framework encouraging public sector bodies to make their documents available for re-use. In Estonia, e-government is central to all policies, which means that there is good infrastructure, which can have positive repercussions for the re-use of PSI (e.g. public administrations are already used to providing PSI).70 Guidelines or other policy documents that complement or clarify the national implementation measures Seven of the Member States analysed in this study (Estonia, Greece, Ireland, Italy, Poland, Slovenia and Sweden) introduced some guidelines or policy documents clarifying the implementation of the Directive at national level. In three Member States (France, Germany and the Netherlands), no guidelines were issued. In Estonia, national guidelines published by the Republic of Estonia Information System Authority and the Data Protection Inspectorate of the Republic of Estonia provided additional information with regard to the implementation of the (revised) PSI Directive in Estonia. In Greece, the Ministry of Administrative Reform and e-Governance issued a “Government Circular” which provided clarifications on the implementing legislation. In Ireland, the Minister of Public Expenditure and Reform published a Guide for Public Sector Bodies on the Re-use of Public Sector Information in April 2016 (revised in 2017). The Minister has also issued several circulars clarifying issues such as the open standard license to be used, criteria for charging, and recommended actions to be taken in light of the 2005 regulations. In Italy, guidelines were issued at national, regional and provincial level. For instance, the Agency for Digital Italy published new guidelines in 2017 (Guidelines for the Development of the Public Information Heritage in 2017). In Poland, the Ministry of Digitisation, for example, issued a manual - commentary on the Re-Use Act, which was developed in cooperation with the Institute of Legal Studies of the Polish Academy of Sciences and experts. In Slovenia, the Ministry of Public Administration provided guidelines on opening up public sector information (Manual on opening up public sector data 2016). In Sweden, although the government did not produce general written guidelines, the legal history (preparatory works) of the Swedish PSI Act are quite extensive, and several guidance papers were produced by public organisations.

70 De Vries, Pijpker, The Danish Dash, June 2013.

Conclusions The majority of Member States have national guidelines in place. However, it appears that these in most cases do not include far-reaching instructions, going beyond the creation of portals (e.g. measures encouraging the cross-linguistic search for documents). It can also be observed that that there is a relatively strong awareness of the Commission’s July 2014 Guidelines on recommended standard licenses, datasets and charging for the re-use of documents, 71 parts of which are occasionally directly reproduced in national level legislation. National guidelines that go beyond the EU level guidelines could constitute an important contribution to making the implementation of the PSI Directive as effective as possible. Ensuring that public administrations are well-informed in this regard can save time and money.

4.1.2 Potential issues arising from implementation of PSI Directive as amended in 2013 Scope of the Directive Please find below an overview of the categories of documents which are excluded under the rules on re-use in the 10 Member States. Note that this table will need to be read in combination with the text that following below, as it represents a summarised and thus simplified version of the information.

71 https://ec.europa.eu/digital-single-market/en/news/commission-notice-guidelines-recommended-standard- licences-datasets-and-charging-re-use.

Table 3 - Categories of documents excluded under the rules on re-use (10 Member States)

Documents held by Documents Documents for Documents educational and relating to Documents which citizens the supply research establishments Documents for national Documents held by public or companies of which is (other than university which 3rd security, containing service MS need to prove a an activity libraries) and documents parties hold statistical personal broadcasters particular falling held by cultural intellectual confidentiality data and their interest to outside the establishments other property rights or commercial subsidiaries obtain access public task than libraries, museums confidentiality and archives

Estonia Yes Yes Yes Yes Yes No Yes

France Partly Yes No No No No Yes

Germany Yes No Yes No Yes Yes Yes

Greece Yes Yes Yes Yes Yes Yes Yes

Ireland Yes Yes Yes Yes Yes Yes Yes

Italy No Yes Yes Yes Yes Yes Yes

The Netherlands No No No No Yes Yes Yes

Poland No No No No Yes Yes No

Slovenia Yes Yes Yes Yes Yes Yes Yes

Sweden No Yes Yes Yes Yes Yes Yes

Source: Spark Legal Network, 2018

Documents for which citizens or companies need to prove a particular interest to obtain access The national rules on re-use exclude documents for which citizens or companies need to prove a particular interest to obtain access in Estonia, Germany, Greece, Ireland and Slovenia. In some of these Member States (Germany and Greece), the national rules simply do not apply to such documents, whereas in one Member States (Estonia) it is specifically mentioned that such documents are not for public use. In Italy, the Netherlands, Poland and Sweden, the national rules do not exclude such documents. In the Netherlands, this is implied as the rules state that applicants do not need to declare their interest in a request for re-use. In France, some documents (e.g. those covered by industrial and commercial secrets) are only communicable to the interested parties concerned. Documents relating to national security, statistical confidentiality or commercial confidentiality The national rules on re-use exclude documents relating to national security, statistical or commercial confidentiality in most Member States. However, the scope of the limitation differs between Member States. There is a difference, for example, between the documents excluded in Estonia (relating to national security, commercial confidentiality) and those excluded in Greece (relating to national security, defense, public order, external policy or information systems security; tax and statistical confidentiality; commercial, industrial, business, professional or company confidentiality). However, the fact that documents are not excluded by the national rules on re-use in some Member States, does not necessarily mean the re-use of such documents is not restricted. In Germany, for instance, the rules do not specifically exclude such documents relating to national security, statistical confidentiality or commercial confidentiality, but there is no right to access to these data. Moreover, in Poland, national security, statistical and commercial confidentiality are mentioned as a possible reason to limit the right to re-use of PSI. Documents the supply of which is an activity falling outside the public task Only in France, the Netherlands and Poland, national rules on re-use do not exclude documents the supply of which is an activity falling outside the public task. In France, the re-use of public information produced or received as part of a public service mission of an industrial or commercial nature is subject to the general regime. In the Netherlands, the rules only specifically exclude documents held by a body not entrusted with a public task. In Poland, the fact that an activity falls outside its public task is seen only as a possible reason to limit the right to re-use of PSI. However, because of uncertainty on the legal definition of “public task”, in 2016 the Polish Ministry of Digital Affairs indicated that when the information is not produced for public purposes, it can be excluded from re- use.

Documents containing personal data The national rules on re-use exclude documents containing personal data in Estonia, Greece, Ireland, Italy, the Netherlands, Slovenia and Sweden. In Estonia, for instance, access and re- use of documents containing information that violates private life is excluded. In Greece, data to which access is permitted but re-use is incompatible with personal data rules is excluded from the rules on re-use. In the Netherlands, the rules do not apply to information relating to public personal data, re-use of which is incompatible with the purposes for which the data were collected. In France, Germany and Poland, documents containing personal data are not excluded. However, in practice the re-use of such documents may still be restricted. In Germany, for instance, there is no right to access to this data. Additionally, in Poland, privacy of individuals can be one of the reasons to limit the right to re-use PSI (although documents containing personal data are not generally excluded). Documents held by educational and research establishments (other than university libraries) and documents held by cultural establishments other than libraries, museums and archives National rules on re-use exclude documents held by educational and research establishments (other than university libraries) and documents held by cultural establishments other than libraries, museums and archives in all researched Member States except for France. However, some exceptions apply. In Estonia, higher education institutions which are considered legal persons in public law, must provide access to and re-use of data concerning only the performance of their duties. In the Netherlands, information held by educational and research establishments (including university libraries) and information held by cultural establishments other than libraries and museums (but not archives) is excluded. In Poland, documents held by these institutions are excluded unless a document concerns public sector information to be made available in the Public Information Bulletin. Access and re-use of data held by public research and educational institutions There are national rules regulating or affecting the access and re-use of data held by public research and educational institutions (which are currently excluded by Article 1.2(e) of the PSI Directive) in most Member States (except the Netherlands). In Estonia, as mentioned above, higher education institutions which are considered legal persons in public law, must provide access to and re-use of data concerning only the performance of their duties. In France, as can be seen above, public research and educational institutions are subject to the general public information re-use regime. In Germany, published works may be made available from the stocks of publicly accessible libraries, museums or archives, which do not serve economic or commercial purposes, exclusively on the premises of the relevant institution. In Greece, the General Secretariat for Research and Technology and all research performing organisations should provide open access to all research results and ensure the interconnection of such results with other open access initiatives. In Ireland, where the research is 100% funded by the State, a public

research institution shall own the IP, and access by industry to it will normally be by the granting of license(s). A set of principles for research data publications is currently being worked on but has not yet been published. In Italy, some obligations (e.g. the obligation to promote open access to articles published in scientific periodicals) are imposed on public bodies, such as research institutions and universities, when they use public funds. In Poland, public research and educational institutions are obliged to make available or provide for re- use, public sector information in the Public Information Bulletin. In Slovenia, public research and educational institutions are still obliged to provide access to PSI. In Sweden, the general constitutional right to access public documents is still applicable to this data. Moreover, if the data held by the public research and educational institutions fulfils the requirements laid down in the Freedom of the Press Act (e.g. it is an “official document”), in certain cases it may be re-used even if the rules on re-use themselves do not apply. Documents held by public service broadcasters and their subsidiaries With regard to documents held by public service broadcasters and their subsidiaries, the national rules on re-use in most Member States (except in Estonia) exclude documents held by public service broadcasters and their subsidiaries. However, in Poland, such documents are not excluded when a document concerns public sector information to be made available in the Public Information Bulletin. Documents for which third parties hold intellectual property rights In most Member States, the national rules on re-use exclude documents for which third parties hold intellectual property rights. The exception is Poland, where a third party intellectual property right is considered only a possible reason to limit the right to the re-use of public sector information. It should be noted that in Estonia, a license for access or re-use for these documents may be provided. Moreover, in France, documents for which third parties hold intellectual property rights are not considered to be public information and as such are not subject to the principle of free re-use. In such cases, the authorities must indicate that the document is covered by intellectual property rights, the identity of the holder of these rights, and that the re-use of this information is permitted under the conditions provided by the intellectual property code. Conclusions It can firstly be said that our research results show fragmentation between Member States with regard to the categories of documents which are excluded under the rules on re-use in the 10 Member States. Although this study has not assessed what the underlying reasons for the discrepancies between the Member States in this regard may be, it should be noted that ideally no such discrepancies would exist and the scope of rules on re-use would be delineated in the same manner across the Member States. It should also be observed that there is no single category of documents which is categorically excluded under the national rules on re-use in all 10 Member States, i.e. in the

table above there is no single category for which all Member States respond either “Yes” or “No”. As such, this need not be problematic: the objective of the PSI Directive is not to ban specific documents from being made available for re-use, but rather to specify that these specific document types need not be excluded within the scope of implementing legislation; this is a national policy choice. The lack of homogeneity is therefore not a problem in the implementation, but rather a reflection of national implementation preferences. Nonetheless, the diversity in the responses can serve to make a broader point. Given that none of the categories of Article 1.2 of the Directive is either systematically included or excluded in all Member States, this would suggest that an implementation approach that systematically and definitely excludes them from the scope of the rules, thereby making re- use of them impossible, is suboptimal if the objective is to encourage PSI re-use. By way of example: the fact that PSI contains personal data (and therefore falls under the exclusions of Article 1.2 of the Directive) does not mean that re-use should be categorically excluded. Nonetheless, some Member States do follow this approach and interpret the list of Article 1.2 as a listing of cases where re-use can be systematically forbidden. It would, however, also be possible to implement and apply the rules in a different manner. More specifically, for each re-use request pertaining to a type of document listed in Article 1.2, an impact assessment should be conducted, taking into account which category of documents the request concerns, and the potential risks and impacts for the protected stakeholders. Under this approach, the categories provided in Article 1.2 would merely act as a “check list” to be used by public sector bodies to determine when an impact assessment should be conducted prior to making the data available for re-use. Moreover, this would entail the harmonisation of national rules on the scope of the rules on re-use, as they would not definitively exclude any category of documents. An even broader re-orientation – which would however require a more fundamental re- thinking of PSI legislation and policy – would be to carry this approach through consistently, and identifying the conditions under which information should be made available for re-use, irrespective of whether it is held by a public sector body. This approach would then focus on a multitude of factors that should be considered, including the nature of the body that created it, whether it was created or is maintained using public funding, and whether the data (or the envisage re-use) serves a public interest. By way of example, this would allow e.g. publicly funded research to be made available, independently of whether the data was being held by a public sector body. Similarly, it could allow e.g. data from clinical trials or from emissions tests to be available upon request for scientific institutions that wish to verify whether the results were reliable, on the basis of a public interest in this research, independent of whether it was held by a public sector body, or indeed even whether the creation of the data was publicly funded. This would arguably create better synergies with other policies, but requires a fundamental re-thinking to the point that the notion “PSI” is no longer adequate, since the data does not necessarily originate from the public sector anymore. Best practices

As can be seen from the overview above, Poland is the only Member State in which national rules on re-use do not exclude documents for which third parties hold intellectual property rights. Since these documents are not automatically excluded, it is implied an assessment will need to be carried out for each request concerning such documents. Similarly, but not covered in the 10 Member States surveyed, Belgian regional re-use rules have a more nuanced take on intellectual property rights. This can be seen in the text box below:

In 2015, Flemish re-use rights were revised through a Decree of 12 June 2015, in order to align them with the update of the PSI Directive. As a part of this process, the IP exclusion clause was also re-written: rather than excluding documents to which a third party holds intellectual property rights altogether, the Decree is not applicable to “documents for which a public sector body does not dispose of the necessary rights to permit re-use”. Therefore, third party ownership of PSI does not exclude the application of the Decree; rather, the Decree requires the public sector body to assess whether its usage rights (typically through a license in case of third party owned documents) stand in the way of re-use. Similarly, the fact that national rules on re-use in France do not exclude documents held by educational and research establishments (other than university libraries) and documents held by cultural establishments other than libraries, museums and archives, demonstrates that the approach set out above is feasible. Bodies governed by public law In nine of the Member States examined (Estonia, France, Germany, Greece, Ireland, Italy, the Netherlands, Slovenia and Sweden) there is no lack of clarity in national law in relation to which bodies fall into the definition of “bodies governed by public law”. Some relevant examples with regard to these definitions are provided below. In one Member State (Poland), these bodies are not clearly defined. In France, the rules go beyond the scope of the PSI Directive since they also apply to state- controlled entities of an industrial or commercial nature and private law bodies carrying out a public service mission are also covered. In the Netherlands, since there is no Dutch term that corresponds exactly to the PSI Directive concept of a “public sector body”, rules on re- use introduced the completely new concept of a “body entrusted with a public task”. Through this dynamic reference, a connection with the concept of a “public sector body” under the PSI Directive and its interpretation was sought. In Slovenia, a public register (based on e.g. data from official records) of all legal persons liable for providing PSI is established. If a legal entity is registered in the register of entities liable, it shall be presumed it is an entity liable under the national rules on re-use unless the entity proves otherwise in a procedure regarding a request for re-use of PSI. In Poland, the fact that the rules on re-use are directly connected with the Public Finance Act, which provides a non-exhaustive list of public finance sector entities, may lead to far reaching interpretation divergences due to the affiliation (or lack of affiliation) of certain institutions to the public finance sector. For example, state-owned enterprises, research institutes, banks and commercial companies are not included in the public finance sector,

meaning the rules on the re-use of PSI do not apply to them even though theoretically they could be considered to fall into the definition of entities obliged to make documents available for re-use. Conclusions No significant practical problems or barriers for the single market with regard to the definition of “bodies governed by public law” have been noted. Link between access and re-use right The right of re-use is not always clearly linked to the right of access, but in most Member States the relationship between access and re-use is clear or implied i.e. the right of re-use relies on the right of access, or the two rights occur simultaneously. In Estonia, the law implies that all public information, access to which and the “public use” of which is not restricted is re-usable. Therefore, the right of re-use is clearly linked to the right of access which requires holders of information to ensure access to relevant information in their possession under the conditions and pursuant to the procedure provided by law. In France, the right of access and the right of re-use are linked. Any document which has been the subject of a communication or a diffusion is generally subjected to the principle of free use and free re-use. Automatic publication online of three categories of administrative data: those communicated to citizens already; those set out in the list of the main re-usable administrative documents; datasets or data whose publication has economic, social, environmental or sanitary interest. In Germany, the Federal Act on the Re-Use of Public Sector Information regulates solely the re-use of information, whilst access to information is regulated in (federal or regional) Freedom of Information Acts. In Greece, the law links the right of re-use with the right of access of public documents by providing that public sector information and documents shall be made freely available, from the moment of their publication, for re-use and further exploitation for commercial or other purposes. In Ireland, the rights are also linked. The individual or legal entity which wants to re-use the data must make a request for the public sector body to “release” it to them. In Italy, documents held by public sector bodies and bodies governed by public law as well as such documents already disseminated for re-use are re-usable. In the Netherlands, the Act on re-use of public sector information states that a body entrusted with a public task may refuse re-use requests for information to which the Act does not apply (information not publicly accessible). The Act does not go further in linking the right of re-use to the right of access. However, its Explanatory Memorandum explains the reasoning behind the separation of the rules on the accessibility of government information and the re-use of public sector information.

In Poland, the rules on re-use contain some links to right to access, yet in practice there is some degree of legal uncertainty on how the two relate to each other. In Slovenia, the right to re-use is clearly linked to the right to access. The same provisions on e.g. the definition of public sector information, procedure apply with regard to re-use of and access to public sector information. The only difference is that in case of re-use, there are some additional grounds to reject the request and the applicant must also provide information on the purpose one wishes to re-use the information for. In Sweden, the legislation states that re-use by the public of documents provided is permitted, taking into account any legal restrictions. However, it is not specifically stated that the rules on re-use only encompass documents which are publicly accessible. Moreover, room is left for the authorities to decide what information is available for re-use. Conclusions No notable practical problems or barriers for the single market have been identified. Re-use of documents held by cultural institutions In five Member States (France, Germany, Italy, the Netherlands and Slovenia), there are specific legal provisions which under specific, albeit usually restricted, circumstances allow for re-use of data held by public heritage institutions. In five Member States (Estonia, Greece, Ireland, Poland and Sweden), there is no specific legal framework regulating the re- use of data held by cultural institutions (more information on Greece and Sweden provided below). In France, the law specifies that the right to re-use applies to such documents in the same manner as any other administrative document. In Germany, as long as there are no contractual provisions to the contrary, it shall be permissible to make published works accessible from the stocks of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant institution at terminals dedicated to the purpose of research and for private study. In Italy, the re-use of such documents must be in compliance with the Italian Data Protection Code and legislation on access to archives and privacy, and on processing of personal data collected for historical purposes. In the Netherlands, the re-use of most public sector information held by libraries and museums is allowed, unless these bodies explicitly limit its re-use by claiming intellectual property rights to it. However, this grounds for refusal does not apply to archives. In Slovenia, when museums and libraries are intellectual property rights owners on the requested PSI they are obliged to enable its re-use, if they are re-using the requested PSI themselves or if they enabled at least one applicant to re-use it.

In Greece, the Act on the protection of cultural heritage provides that the specific conditions for the exercise of the right of access to cultural data for research or other purposes will be laid down by specific Presidential Decrees. However, no such Presidential Decree has been issued so far. In Sweden, there is no specific legal framework catering to libraries, museums and archives. However, the Swedish National Archives set up a webpage where guidance for libraries, museums and archives is provided. The idea under the guidance is that their documents should be made available for re-use as any other public digital document. Conclusions Research illustrates that Member States do not have any far-reaching measures in place to restrict the re-use of documents held by cultural institutions. This seems to suggest that they do not consider this type of re-use a category that requires their own rules. It should also be noted that it is often inherent to the mission of cultural institutions to be open (as well as in their interest). Formats “Where possible and appropriate” (Art 5(1)) In three Member States (Greece, Ireland and Italy), no clarity at all is provided in respect to the terms “where possible and appropriate” (Art 5(1)). In two Member States, the wording laid down in the PSI Directive has been altered when transposing it in order to provide some clarity with regard to one of the terms (Estonia and Germany). In other Member States (the Netherlands, Poland and Slovenia), only the term “where / if possible” has been implemented (the example of Slovenia is provided below). In two Member States (France and Sweden), practicalities make both concepts irrelevant. In Estonia, the law provides that if it is impossible or extremely burdensome to convert open data into digital format, machine-readable format or open format, the holder of information shall grant access to open data in their original format or in any other format. In Germany, “where possible and appropriate” has been replaced by “where possible, and where it involves no undue expense to the public-sector body”. In Slovenia, the condition of “as much as possible” as transposed is considered to be met if disproportionate effort, going beyond a simple operation is not involved, and an obligation to continue with the creation of certain information only for the purposes of re-use of information by other bodies or other persons is not implied. In France, there is an obligation to respect an open standard, and the legal conditions as such are thus irrelevant. In Sweden, in order for data to be visible in the national data, data needs to be structured in a file "catalogue" with specific codes recommended by the EU Commission in a so-called "DCAT-AP format".

Disproportionate effort (Art 5(2)) In some Member States (Germany, Greece and Italy), national law does not provide any clarity in respect to the term “disproportionate effort” (Art 5(2)). In France, as converting documents to open standard is an automated processing of common use, the term is thus irrelevant. In Sweden, Article 5(2) was not transposed. In the other Member States (Estonia, Ireland, the Netherlands, Poland and Slovenia), the term is clarified by considering the actions that would constitute a “disproportionate effort”. In Estonia, a holder of information may refuse to comply with a request for information if: 1) there are no technical means for it; 2) the type of medium does not enable compliance; 3) oral communication of the information would excessively hinder performance of the main duties of the holder of information due to the time this would take. In Ireland, case law states that providing data which would amount to creating a new database or adapting the existing one to meet the applicant’s requests, constituting a disproportionate effort going beyond a simple operation. In the Netherlands, it is mentioned that a request that requires the digitisation of large numbers of pages or documents whose state does not allow digitisation (e.g. old manuscripts) can be rejected on the grounds that this would constitute “disproportionate effort”, provided it is substantiated. In Poland, not going beyond a simple operation (thus a “disproportionate effect according to the PSI Directive”) means the administration should not be distracted from its basic tasks, and beyond a task that is easy, simple, carried out daily, without the need for significant costs, the involvement of essential resources, the workload or the time devoted to their execution. In Slovenia, the term is only specifically clarified with regard to obligations of cultural institutions for whom it is taken to refer to public sector information undergoing a professional processing, restoration or digitisation procedure with respect to entire funds or large sets of materials or which cannot be used due to damage to the original. Conclusions The use of standards can be considered to be the most underestimated factor of re-use. The utility of re-use of PSI could be effectively accelerated through the issue of formats. If this is organised properly, the value of PSI will increase through the facilitation of the discoverability, accessibility and re-usability of data. As desk research shows, the national implementation of Article 5(1) (2) is quite diverse across the ten Member States. However, a common element across the Member States seems to be the lack of clear and specific guidance to public bodies with regard to “where possible and appropriate” and “disproportionate effort”. Comparing the implementation of the PSI Directive and in particular, Article 5(1) (2), with the implementation of the INSPIRE Directive - which is very detailed and practical - it can be

noted that the latter works for three main reasons: 1) geo information by definition is about standards, which are crucial for accessibility, 2) it is factual and, it is relatively homogeneous across the EU. Furthermore, 3) this highly prescriptive approach of INSPIRE works because the regulatory approach is context specific and well-defined; the same approach probably would not work for PSI in general, or at least not without an extremely high investment cost, due to its diversity. “INSPIRE-like” outcomes can be achieved when a sector becomes sufficiently mature, standardised and homogeneous. Even though INSPIRE results cannot be obtained, progress can be made by: 1) Providing practical and operational support to public bodies that need to make data available; 2) Applying standards through sector specific initiatives (e.g. the Business Register Directive or weather information); this should be monitored in order to take advantage of this; and 3) Comparing and aligning best practices at EU level. Dynamic data / APIs Please find below an overview of the legal requirements on public bodies or bodies governed by public law (or some of these bodies) in the 10 Member States. Note that this table should be read in combination with the text that follows below, as it represents a summarised and thus simplified version of the information.

Table 4 - Legal requirements on bodies governed by public law (10 Member States)

Published and Published and Accessible as data Accompanied by maintained at a stable Described in rich updated dumps (massive explanatory Subject to location, preferably Published in metadata formats Published online frequently at the outputs of data) as documents on the regular feedback on the highest machine- and classified in their original, highest possible well as through metadata and from re-users to organisational level readable and according to MS unmodified level of application controlled maintain quality within the open formats standard form to ensure granularity to programming inter vocabularies used, to over time and administration, to to enhance vocabularies to timely release ensure faces (APIs) to promote the promote public ensure easy access accessibility facilitate searching completeness facilitate automatic interoperability of involvement and long-term and interoperability and accuracy processing databases availability

Estonia Yes No No No No No No No

France No Yes No Yes Yes No No No

Germany No No No No No Yes No No

Greece No No No No No No No No

Ireland No No No No Yes No No No

Italy No Yes No No Yes No No No

Netherlands Yes Yes No No No No No No

Poland No Yes Yes No No No No No

Slovenia Yes Yes No No No No No No

Sweden No No No No No No No No

Source: Spark Legal Network, 2018

Published online in their original, unmodified form to ensure timely release In almost all Member States (except in Estonia, the Netherlands and Slovenia), there are no requirements on public bodies or bodies governed by public law (or some of these bodies) to publish public sector information online in their original, unmodified form to ensure timely release. However, in Estonia, a holder of information is required to disclose information in a manner which ensures that it reaches every person who needs the information as quickly as possible as well as disclose promptly any information concerning danger in the quickest and most suitable manner. In the Netherlands, although there is no legal requirement on this matter, the Dutch open data portal states that open data posted is as similar as possible to the data used within the public organisation and is made available as much as possible “as is”. In Slovenia, guidelines state that data should be published in their original form, with the highest level of granularity, without additional aggregation, grouping or modification. Published and updated frequently at the highest possible level of granularity to ensure completeness and accuracy In some Member States there are also requirements on public bodies or bodies governed by public law (or some of these bodies) to publish and update frequently at the highest possible level of granularity to ensure completeness and accuracy. In Italy and Slovenia, for example, guidelines promote the frequent updating of data. In the Netherlands, administrative authorities must supply data in such a manner that interested members of the public will be able to make their views known to the administrative authority in good time. In Poland, the relevant entities are obliged to systematically verify and update the information resources and metadata provided in the central repository. In France, there is such a requirement for default open data, which causes ambiguity. Some consider that there is an obligation to update regularly the databases and data presenting economic, social, health and environmental interests. Others interpret it as saying only regularly updated databases and data are subject to the default Open Data requirement. Moreover, “baseline data” (designated by decree) must also comply with quality criteria such as the publication of updates. Published and maintained at a stable location, preferably on the highest organisational level within the administration, to ensure easy access and long- term availability None of the Member States have requirements on public bodies or bodies governed by public law (or some of these bodies) in place to publish and maintain public sector information at a stable location, preferably on the highest organisational level within the administration, to ensure easy access and long-term availability. However, in Poland, public sector information is held at the Central Repository of Public Information maintained by the

Ministry of Digital Affairs, with the recommendation to keep the URL of each resource unchanged. Published in machine-readable and open formats (CSV, JSON, XML, RDF, etc.) to enhance accessibility In none of the 10 Member States is there a precise and extensive legal requirement in place on public bodies or bodies governed by public law (or some of these bodies) to publish public sector information in machine-readable and open formats (CSV, JSON, XML, RDF, etc.) to enhance accessibility. However, in one Member State (Ireland), it is indicated data should be in such format. In others (Estonia and Slovenia), this requirement (machine-readable and open formats) only applies if doing so is possible and appropriate and proportional. And in Italy and Poland, data must be published in machine-readable format where possible and appropriate (applicable). In France, converting documents to open standard is an automated processing of common use and therefore this requirement does exist. In Germany, on the other hand, the GovData portal decided to include data that does not meet all criteria for "open data" in order to still be able to provide a lot of data, and in Poland (closed standards) are also acceptable. In Italy, a list of open formats that can be used by public sector bodies is published once a year. Described in rich metadata formats and classified according to standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability In France, Ireland and Italy, there are requirements on public bodies or bodies governed by public law to describe public sector information in rich metadata formats and classified according to standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability. In France, the source and date of last update, data title, description of data, periodicity of data availability, format, geographical coverage, license, keywords of the public information must be mentioned. In Ireland, the Department of Expenditure and Reform has published an Open Data Technical Framework which indicates that data should be in such format. In Italy, public sector information must be made available with corresponding metadata to facilitate understanding, access and re-use of data. Although there are no such requirements in this regard in Germany, in light of an emerging desire for more binding character, the JSON scheme for Open Government Data (OGD) was developed. The OGD metadata structure is maintained on a platform. In the Netherlands and Sweden, the national data portals are equipped with metadata according to the DCAT- AP standard.

Accessible as data dumps (massive outputs of data) as well as through application programming inter faces (APIs) to facilitate automatic processing Although in several Member States public bodies or bodies governed by public law (or some of these bodies) make public sector information accessible as data dumps (massive outputs of data) as well as through application programming inter faces (APIs) to facilitate automatic processing, there is only a clear legal obligation in Germany. In Germany, depending on the number of data records and their own technical requirements, different variants are available for the provision of data (e.g. manual provision via a webform, automatic provision via “CKAN-API”). Accompanied by explanatory documents on the metadata and controlled vocabularies used, to promote the interoperability of databases In none of the Member States are there legal requirements on public bodies or bodies governed by public law (or some of these bodies) to accompany public sector information by explanatory documents on the metadata and controlled vocabularies used, to promote the interoperability of databases. However, in Germany, data is only published when its descriptions are sufficiently comprehensive and in the Netherlands, administrative authorities must ensure that government information is supplied in a comprehensible form. Subject to regular feedback from re-users (public consultations, comments box, blogs, automated reporting, etc.) to maintain quality over time and promote public involvement There are no Member States in which there are requirements on public bodies or bodies governed by public law (or some of these bodies) to subject public sector information to regular feedback from re-users (public consultations, comments box, blogs, automated reporting, etc.) to maintain quality over time and promote public involvement. However, in most of the Member States, users are invited to provide feedback. Conclusions In respect to the above-mentioned requirements, the analysis shows uniformity among the ten Member States. There are only a few examples of legal requirements on public bodies at national level (e.g. in France, public bodies or bodies governed by public law are required to describe public sector information in rich metadata formats and classified according to standard vocabularies), and in two Member States (Greece and Sweden) no requirements have been identified. Portals are not as dynamic as they might be (i.e. data is frequently offered as a download rather than as a dynamic API / web service); the text of the Directive should ideally recognise the importance of the service based availability of PSI more. It would be useful to steer PSI re-use in the direction of a web-based approach, not a file-based approach: public sector bodies should be offering data as a service, not just as data. However, instead of this being just a legal requirement which is imposed on public sector bodies, the government should provide support and strive toward web-based functionalities where this is

appropriate (e.g. guiding the public sector bodies to build this). It is important to note that this approach cannot apply to all types of PSI (e.g. court decisions), but will be invaluable for others, as document-based mechanisms in various cases will not work (e.g. location apps). It should also be noted that the use of web-services would also require formatting issues to be solved, since data available via web services must inherently be structured. Charging provisions Rules on the method for calculating charges in response to the 2013 amendment In all Member States, the charging provisions were amended based on the 2013 PSI Directive. Some examples of relevant rules the Member States implemented on the method for calculating charges in response to the 2013 amendment are provided below. In Estonia, the pre-existing rules set out that access to information shall be free unless payment is prescribed by law and that the public body must cover the administrative costs of making information available to the public if it is required by law. A person requesting information shall pay up to 0.19 Euros per page for print-outs and copies on paper starting from the twenty-first page, unless a state fee for the release of information is prescribed by law. The new rules introduced in response to the 2013 amendment add that holders of information may include, in addition to the costs already specified, a reasonable return on investment. In France, an exemption from the principle of “free of charge by default” is provided where the total revenue of the amount of this charge, evaluated over an appropriate accounting period, does not exceed the total amount of the costs relating to the collection, production, making available to the public or dissemination of public information, and (for digitalisation operations) where the total revenue of the amount of this charge, evaluated over an appropriate accounting period, does not exceed the total amount of the costs of collection, production, provision or dissemination, retention of their information and acquisition of intellectual property rights. In Germany, public bodies which do charge fees need to adhere to the Federal Act on the Re-Use of Public Sector Information and regulations allowing public bodies to charge fees did not have to be changed in the light of the amendments to this Act. The public law fee system - in particular the prevailing cost recovery principle - remains unaffected. In Greece, the law provides that in case there are charges for the re-use of documents, information or data held by public-sector bodies, any applicable conditions and the total amount of those charges, including the calculation basis for such charges, shall be pre- established and published electronically. In Ireland, a Circular published by the Department of Public Expenditure and Reform and circulated to the Heads of Government Departments sets out criteria for charges that may be applied by certain categories of public service bodies in permitting re-use of information and sets out the principles to be applied when charging for documents.

In Italy, guidelines suggest that public bodies offer their data for free. In cases where they want to charge for reproduction, provision and dissemination costs, it is suggested they follow the criteria and rules set forth in Communication Notice 2014/c-240/01 (on recommended standard licenses, datasets and charging for the re-use of documents). In such cases, the Digital Italy Agency should determine and publish on its website those charges which are calculated and proposed by the data holder. In the Netherlands, possible charges should be limited to the marginal provision costs. These costs concern the additional costs that have to be incurred in order to meet a re-use request and can be directly linked to the distribution of the documents. The costs for an existing infrastructure may not be charged, nor can the costs for archiving, sales or marketing or an already existing helpdesk, unless additional costs are incurred to comply with the request for re-use. When documents are proactively made available for re-use online no marginal provision costs may be charged, since there is no request and the potential number of re-users can be very large. In Poland, the general rule is that charging should be limited to the “direct costs”, without the possibility to charge for a “reasonable return on investment”. The exception to this rule (added in response to the 2013 amendment) applies only to State museums or local government museums in case of sharing or transferring PSI for re-use for commercial and non-commercial purposes (other than non-commercial research, scientific or educational purposes). Another provision, which was not present in the pre-existing rules, is that an entity may impose a charge for re-use which takes into account the costs of adjusting the IT system and the technical and organisational conditions in such a way as to fulfil a request for re-use. In Slovenia, the main change introduced in response to the 2013 amendment is that now only marginal costs may be charged for re-use, regardless of whether the re-use is requested for commercial or non-commercial purposes. Moreover, a price may be charged when re-use is requested from a public body that generates revenue to cover at least 30% of its costs relating to the performance of its public tasks in accordance with the work or financing plan or programme, when the requested re-use is for commercial purposes, and that is a library, museum or archive. In Sweden, the Swedish PSI Act establishes a fee ceiling, but does not in itself give an authority the right to charge a fee. Instead, the Fee Regulation stipulates that fees representing total costs can be charged. According to a report from the Swedish government, that should include also a “reasonable rate of return”. Scope of the charging exception set out in Article 6(2) (a) of the PSI Directive In four Member States (France, the Netherlands, Slovenia and Sweden), some guidance or clarification has been provided in reference to the charging exception set out in Article 6(2) (a) of the PSI Directive. In five Member States (Estonia, Germany, Greece, Ireland and Italy), no clarification was provided. In one Member State (Poland), this exception has not been implemented into the national law.

In the Member States where guidance has been provided, it clarifies that the charging exception set out in Article 6(2) (a) of the PSI Directive applies to:

Table 5 - Relevant guidance on the scope of the charging exception set out in Article 6(2) (a) of the PSI Directive

Public or private persons exercising a public service mission “whose main activity is the collection, production, provision or dissemination of public France information, when the cost of this main activity is less than 75% covered by tax revenue, endowments or grants”. Public entities which, under legislation, are required to cover their costs - an Germany example provided for in the law is the German weather service, which needs to cover a significant part of its costs. A minimum number of exceptions, to be regularly reviewed. Three The institutions are designated to fall under this exception: the Cadastre, Land Netherlands Registry and Mapping Agency, the Road Traffic Authority, and the Chamber of Commerce. Public bodies required to generate revenue to cover at least 30% of their costs relating to the performance of their public tasks, when the re-use is Slovenia intended for commercial purposes (re-use by a business entity), and when this has been decided by a formal decision of the Ministry of Public Administration. Some government agencies according to their government instructions and Sweden regulatory letters (e.g. the Company Register).

Source: Spark Legal Network Scope of the exception set out in Article 6(2) (b) In none of the ten Member States was guidance or clarification in relation to the implementation of the exception set out in Article 6(2) (b) provided. Moreover, this exception has not been implemented in the law in three Member States (France, Poland and Slovenia). Objective, transparent and verifiable criteria for charging (Article 6 (3)) In six Member States (Estonia, France, Germany, Ireland, the Netherlands and Slovenia), criteria were introduced so as to comply with Article 6(3) of the PSI Directive. In four Member States (Greece, Italy, Poland and Sweden), no further details or specifications have been issued regarding the criteria. In Poland, this is due to the fact that the exception was not transposed into the law in the first place. In Sweden, each public authority has a separate system of calculations. In Estonia, the determination of the expenses should be the estimated costs related to maintaining and disclosing information from registers and databases, and examples of

estimated costs are provided. Costs related to the creation of information can arise from preparation, collection and anonymisation. Costs related to dissemination of information can arise from building and maintaining the infrastructure, propagation, handling, consultation and delivery costs. Moreover, a reasonable return on investment shall be up to 5% higher than the fixed interest rate applicable to the main refinancing operations of the European Central Bank, unless otherwise provided by law. In France, a Decree on the principles and modalities for setting fees for the re-use of public sector information was adopted. The Commission for Access to Administrative Documents (CADA) is particularly attentive to these criteria. It is assumed that the principle of free by default will lead the CADA to ensure even more rigorous application of these principles. In Germany, fees may need to be based on the estimated potential for re-use demand over a given period (instead of an actual number of user requests). It is important that a quantifiable output of the activities of the public sector is used as a reference. There is no further clarification in the law on the concept of a “reasonable” profit margin. In Ireland, a Circular published by the Department of Public Expenditure and Reform and circulated to the Heads of Government Departments sets out criteria for charges that may be applied by certain categories of public service bodies in permitting re-use of information and sets out the principles to be applied when charging for documents. In the Netherlands, some guidance was provided. For example, that the costs for an existing infrastructure may not be charged, nor can the costs for archiving, sales or marketing or an already existing helpdesk, unless additional costs are incurred to comply with the request for re-use. Moreover, when documents are proactively made available for re-use online, it was clarified that no marginal provision costs may be charged, since there is no request and the potential number of re-users can be very large. In Slovenia, detailed criteria on this are provided for. Among other criteria provided, it is stated the public body must shape the price for re-use for commercial purposes annually, and needs to consider the price of holding the requested information and the share of re- use for commercial purposes with regard to the total extent of the anticipated re-use. The price set for an individual re-user must be determined with regard to the expected number of interested re-users for commercial purposes, taking into consideration the extent of their re-use. Regardless of this (the number of interested re-users and the extent of their re-use) or when these factors are impossible to be determined, the public body is only allowed charge for one twentieth of the price, determined in the way described above. Clarification on how the concept of “reasonable rate of return” should be applied by cultural heritage institutions There is only one Member State (the Netherlands) which clarifies the concept of the reasonable rate of return in reference to charging by cultural institutions. In the remaining nine Member States, no information on this was provided.

In the Netherlands, with regard to cultural heritage institutions, it is noted that as far as libraries and museums are concerned, when calculating a “reasonable rate of return” on investment, the amount charged by the private sector for the re-use of identical or similar documents can be taken into account. However, no further guidance on how the concept should be applied by these institutions is provided. Archives cannot charge for (allowing) re- use. Transparency obligations In most Member States, public sector bodies shall indicate at the outset which factors are taken into account in the calculation of charges. Upon request, they shall also indicate the way in which such charges have been calculated in relation to the specific re-use request. However, in most countries, there are no significantly broader or stricter transparency obligations. In one Member State (Italy), Article 7 of the PSI Directive has been only partly transposed into national legislation. For instance, in Slovenia, the mandatory condition for re-use is attribution – naming the source of the public sector information. Although the law does not specify how the source of information must be attributed, guidelines were published which recommended providing data on the institution holding the public sector information, website, and when and where the information was acquired. A public body may also stipulate other conditions, if necessary for the purposes explicitly listed in the law (e.g. providing updates and correctness of public information). Conclusions Very limited guidance is provided by the Member States with regard to the scope of the exception set out in Article 6(2) (a) of the PSI Directive, and indeed no guidance was provided on the exception set out in Article 6(2) (b) of the PSI Directive. However, the examples provided in the guidance on the first exception that is in place, suggest that in practice there are very few big data holders relying on income from PSI whose revenues would be significantly impaired if the re-use of their data is made free of charge. As this exception was included in the PSI Directive with such public sector bodies in mind, its relevance can thus be questioned, provided that it is not relied on in practice. This also applies with regard to public sector bodies that charge a small amount for re-use of their PSI, to the extent that their transaction costs concerning re-use surpass the total charges made. Requiring public sector bodies to accurately justify their reliance on this charging exception would possibly address this issue. With regard to the rules on charging itself (objective, transparent and verifiable criteria for charging, and the application of “reasonable rate of return” by cultural heritage institutions), Member States either implemented the 2014 Commission Notice Guidelines on recommended standard licenses, datasets and charging for the re-use of documents or provided no further clarification. Similarly, no significantly broader or stricter transparency obligations were laid down in the Member States. Best practices

In the Netherlands, the institutions which may rely on the exception set out in Article 6(2) (a) of the PSI Directive are specifically mentioned. It is considered good practice for the bodies not specifically mentioned not to rely on this exception. This means that the limits of the exception have been clearly defined and it cannot be unjustifiably relied on by other public sector bodies. The text box below shows an interesting interpretation of the EFTA Court on the exception to marginal cost pricing that the PSI Directive allows. It should be noted that Iceland is not part of the selecting of Member States in which legal data collection was carried out.

In Case E-7/13 Creditinfo Lánstraust hf. v þjóðskrá Íslands (Registers Iceland) and the Icelandic State, the EFTA Court gave its judgment on questions referred to it by the Héraðsdómur Reykjavíkur (Reykjavík District Court) regarding the interpretation of the 2003 PSI Directive.72 The Court ruled that Articles 6 and 7 of the Directive require that, when charges are made for the re-use of public sector information, a substantive examination must have been undertaken at the time when the charge was fixed. The examination must show that the total income from such charges does not exceed the cost of collection, production, reproduction and dissemination of documents, plus a reasonable return on investment. If the factors relevant to performing a calculation are uncertain, an estimate must at least be made. However, the calculation method for the charges needs only be made available upon request. This applies irrespective of whether the charge is set out it legislation, by the relevant public authority or by other means.73 It also decided that when the cost pursuant to Article 6 of the Directive is determined, account may be taken of the cost incurred by a public sector body in connection with the initial collection and production of the documents in question. In such case, any income accrued in that connection, for example fees or taxes such as stamp duties, which reduce or offset that cost, must also be taken into account.74 Lastly, the Court ruled that self-financing requirements for public sector bodies may be taken into account when determining the cost under Article 6 of the Directive. This applies only to cost elements, together with a reasonable return on investment, that are related to the document processing necessary for re-use set out in Article 6 are taken into account.75 Grounds for refusal Eight of the analysed Member States (Estonia, Greece, Ireland, Italy, the Netherlands, Poland Slovenia and Sweden) introduced legal grounds for refusal. In France, the reasoning provided

72 Case E-7/13 Creditinfo Lánstraust hf. v Registers Iceland and the Icelandic State (http://www.eftacourt.int/uploads/tx_nvcases/7_13_Judgment_EN.pdf). 73 Idem, paragraph 48. 74 Idem, paragraph 63. 75 Idem, paragraph 73.

in the refusal is regarded as the grounds for refusal. In Germany, it is considered that the rules on procedure are not necessary as all material falling within the scope of application is re-usable. In Estonia, a holder of information must refuse to comply with a request for information e.g. if restrictions apply to the requested information and the person requesting it does not have the relevant access rights or if the holder of information does not possess the requested information, does not know who possesses it and is unable to identify the holder of the requested information. Moreover, a holder of information may refuse to comply with a request for information e.g. if the requested information has already been released once and the person making the request does not justify the need to obtain the information a second time. In Greece, the right of access to public documents shall be denied if the document relates to the private or family life of a third party. The competent administrative authority may refuse to grant the right concerned if the document refers to the deliberations of the Council of Ministers or if the granting of the right may substantially hinder an investigation carried out by judicial, administrative, police or military authorities in respect of a crime or administrative infringement. In Ireland, a request for access may be refused if a record is available for inspection by members of the public whether upon payment or free of charge. In other words, access in the requested form is refused, but it is still open to the person making the request to go and consult the record. This, however, may present problems in practice for both access and re- use, depending on the type of document concerned. In Italy, a request of access can be refused, for example, to avoid the prejudice to a particular public interest (public order, public security, international relations) or private interests (personal data). In the Netherlands, a body entrusted with a public task may refuse re-use requests only for information not publicly accessible under the law, information to which the rights are held by a third party within the meaning of the Copyright Act, the Related Rights Act or the Databases Act, information held by a public service broadcaster, another body entrusted with a public service broadcasting task or a body operating under the responsibility of a public broadcaster or another body entrusted with such a task, information held by educational and research establishments, information held by cultural establishments other than libraries and museums, parts of documents containing only logos, crests and insignia, information relating to public personal data, re-use of which is incompatible with the purposes for which the data were collected. In Poland, access can be limited based on principles defined in the regulations on the protection of classified information and on the protection of other secrets protected by law. The right to access information is also limited in order to protect the privacy of natural persons and business secrets, and based on the rules determined in the regulations on forced restructuring.

In Slovenia, a public body may reject the applicant’s request based on procedural or substantive grounds. Moreover, the public body may exceptionally deny the applicant access to requested information in the event the applicant - with one or more functionally connected requests - manifestly misuses its right to access public information or it is clear the request or requests are of vexatious character. In Sweden, the right to re-use information is denied in cases where the data is covered by the Public and Privacy Act, where the data contains personal data, where the data is not a “public document” yet (e.g. working documents), and where the data is covered by third party copyright. Conclusions It can be seen that in most Member States the grounds for refusal of re-use requests laid down in the national law based on the respective provisions of the PSI Directive (e.g. the provision on documents for which third parties hold intellectual property rights). However, in doing so, it can also be noted that some Member States allowed for an assessment to be carried out per request, whereas other Member State specified the grounds on which requests must be refused (and some decided on a combination of these two options). This issue will be more relevant in Member States that do not have a web-based approach in place, as public sector bodies in such Member States will have to process individual requests instead of being able to rely on an automated process. Best practices In the Netherlands, the law transposing the PSI Directive provides the grounds on which a request may be refused, thereby implying an assessment will be carried out for each request. Moreover, it lays down a clear legal framework which specifies and limits the grounds on which such an assessment may be carried out. Redress scheme at national level All 10 Member States have defined their redress procedures. None of the analysed Member States appointed a body to deal specifically with appeals regarding requests for re-use. Instead, some Member States refer to general administrative procedures whereas in other Member States existing bodies (e.g. the Irish Information Commissioner) deal with such appeals.

Table 6 - Bodies dealing with appeals regarding requests for re-use (10 Member States)

Estonia Estonian Data Protection Inspectorate / an administrative court France Commission for Access to Administrative Documents German Supervisor for Data Protection and the Freedom of Germany Information Greece General Inspector of Public Administration Ireland Information Commissioner (High Court)

Italy Competent Ombudsman / Regional Administrative Tribunals The Netherlands Administrative body / court Poland Administrative appeal body General Administrative Court / Administrative Court of Appeal / Slovenia Supreme Administrative Court Sweden Information Commissioner / Administrative Court Source: Spark Legal Network In Estonia, a person may file a challenge with the Estonian Data Protection Inspectorate or an action with an administrative court either personally or through a representative. A charge must be filed within 30 days of the day when a person becomes or should become aware of the challenged administrative act or measure, unless otherwise provided by law. Unless otherwise provided by law, a challenge shall be adjudicated within 10 days after the challenge is delivered, however if a challenge needs to be further examined, the term may be extended up to 30 days. In France, from the (implicit) refusal decision, the applicant has a period of two months to submit an appeal to the Commission for Access to Administrative Documents. The Commission’s opinions are not binding but has sanctioning powers. In Germany, the general administrative law provisions apply to re-use requests. The complaint against the administrative act or decision needs to be made within one month of the communication of the administrative act or decision to the complainant. The deadline for lodging a claim under German administrative law is one month. Claims regarding violations of the right of access to information are submitted to the German Supervisor for Data Protection and the Freedom of Information. In Greece, an administrative appeal may be lodged against the rejection decision of the body concerned before the General Inspector of Public Administration. This appeal must be lodged within a strict deadline of ten days from the notification of rejection to the applicant. Rulings of the General Inspector of Public Administration are subject to an appeal for annulment before the competent Administrative Court of Appeal. In Ireland, the Information Commissioner fulfils the role of “Appeals Commissioner” in relation to appeals against refusals by public bodies to allow re-use. The appeal must be made in a legible form within four weeks of the refusal by the public sector body (unless there are reasonable grounds for extension). The decision of the Appeals Commissioner shall be made as soon as practicable, but within three months. The Appeal Commissioner’s decision may be appealed to the High Court. In Italy, the national law transposing the PSI Directive does not specify how the appeal system works but rather it refers to the national law which describes the administrative procedure. Under this law, a refusal shall be presented to the competent Ombudsman. This body shall make a decision within 30 days of the presentation of the appeal. If the Ombudsman considers the refusal unlawful, it shall inform the applicant and the competent 87

public body. If the public body does not confirm the refusal or does not take any actions within a period of 30 days, access is allowed. Currently, the Parliament is working on creating one single national Ombudsman. Additionally, as a general rule, applicants may also present appeals against refusals by public bodies to the competent Regional Administrative Tribunal (TAR). In the Netherlands, a redress scheme at national level already existed under the general administrative law. Under the Dutch appeal system, anyone who has the right to appeal against an order must first lodge an objection with an administrative body. The administrative body shall give its decision within six to twelve weeks, counted from the day after which the deadline for submitting the objection expired. The decision on the objection is then open to appeal to the administrative court. The ruling on this will be shared with the parties at the latest six weeks after the investigation was closed. In Poland, the administrative law provisions apply in case of a refusal to re-use PSI. The applicant may request a review of the administrative decision by appealing to a higher level body (e.g. the local government appeals board, the relevant minister). Once this administrative route has been exhausted, within 30 days, the applicant has the right to challenge the administrative decision in the (provincial) administrative court. In Slovenia, when a public body refuses the applicant’s request in whole or in part, the applicant must file the appeal with the public body. If the public body finds that the procedural requirements are fulfilled and insists on its initial refusal, it sends (within 15 days) the appeal and all the relevant documentation to the Information Commissioner. The Commissioner has to issue a decision at the latest within two months from receiving the complete appeal. Any of the parties involved may begin an administrative dispute against the Commissioner's decision before the Administrative Court. In Sweden, an individual case may be appealed to the General Administrative Court. The decision on a case initiated there, is appealed against in the Administrative Court of Appeal. A decision of the Administrative Court of Appeal is appealed to the Supreme Administrative Court. In practice, there exist no time limits. Conclusions The PSI Directive imposes the obligation to allow re-use when the requirements are met. In other words, when the national legislation on PSI applies, the re-use must be permitted, and negative decisions must be justified (as opposed to the previous model which required public sector bodies to decide whether they wished to make PSI available). In effect, the model moved from a decision-based logic to a default-granting based logic. This makes the redress scheme more relevant: since negative decisions must be explicitly made and justified, an assessment of the validity of the decision as a part of the redress scheme becomes much more viable. With regard to the implementation of the PSI Directive, it does not seem to make a substantial difference which body is responsible for appeals regarding requests for re-use. Moreover, the Commission does not have the competence to

implement policy measures in this regard, as it is the Member States that designate competent courts. Practical arrangements All the 10 analysed Member States have introduced practical arrangements, based on the provisions of Article 9. In most Member States, these mainly take the form of online data portals. However, some more far-reaching measures have been taken in some Member States as well (Ireland, the Netherlands and Sweden). In Ireland, an Open Data Portal facilitates the search for documents available for re-use. Around 550.000 datasets were made available on the portal. Moreover, Ireland has set up an Open Data Engagement Fund to encourage re-use as well as a framework for Open Data training in the public sector. In the Netherlands, the Dutch open data portal offers an up-to-date overview of all available datasets of the Dutch government and refers to the location and / or to the organisations and contacts behind a dataset. Moreover, a newly proposed Act includes a list of categories on which information must be made public in principle and would introduce a transparency register. Additionally, the Standardisation Forum - which aims to promote interoperability and supplier independence through the use of open standards for digital data exchange in the public sector and advises the Dutch government - was established. Within the government, work is being done on standardisation of government information (e.g. the Dutch Open Action Plan) and within the field of geo-spatial data, in particular in the context of INSPIRE, standards have been or are being established and maintained by the Dutch standardisation organisation Geonovum. In Sweden, the National Archives were recently commissioned by the government to promote government authorities’ and agencies' efforts to make data available for re-use. Moreover, SE is carrying out a study on users’ needs with regard to the national data portal. Conclusions It has been observed that all ten Member States comply with the PSI Directive. This implies that Member States consider this issue as being of importance, and consequently that it can be taken to the next level (e.g. practical arrangements should also provide a dynamic support model to make them accessible). Exclusive arrangements De facto exclusivity In Estonia, France, Greece, Ireland, Italy, Poland and Sweden, no issues were noted regarding de facto exclusivity. However, in Germany there is a discussion regarding the exclusive access to legal information, and in the Netherlands the prohibition affected the government’s relationship with its official publisher. In Slovenia, it seems that the established costs provide an advantage to some re-users over others.

In Germany, there is a discussion regarding the exclusive access to legal information. Although judgments and laws belong to the public domain, in practice this is more complicated because court judgements are not freely available on the Internet and some companies earn money from paid databases that collect laws and judgements. In the Netherlands, the prohibition of exclusive arrangements laid down in the PSI Directive was one of the reasons the Dutch government reviewed its exclusive relationship with the publisher of its official publications (Sdu). In 2006, it was decided that a new database for official publications would be created, owned by the government. In Slovenia, certain re-users have mentioned (unofficially) that they do not wish to appeal against public bodies charging them for re-use very high (possibly non-compliant with the legislation) costs, as it gave them an advantage over other potential re-users, who could not afford re-use. Conclusions In the majority of Member States, with the exception of Germany and Slovenia, formal exclusive arrangements could not be identified. As examples show, such arrangements might distort competition. For instance, in the United Kingdom, a public-private partnership between the National Health Service (NHS) and Google highlights certain competition issues, such as related to the fact that the public body in question (NHS) makes human capital and investments available to a private entity (see text box below). The de facto exclusivity problem cannot be resolved only by opening up data. Essentially, three levels of PSI-support can be considered: 1) The current approach which is about making data available (currently often still interpreted as making it available as a download); 2) A more dynamic approach which focuses on data as a service: stronger emphasis on APIs and web services; and 3) A cooperative model where the public sector bodies not only offer data, but also operational support and know-how. Presently, the PSI Directive focuses on option 1 and 2, with arguably insufficient backing for the importance of dynamic data services, but not on option 3. That third option is indeed significantly more demanding in terms of efforts and resources; it cannot be reasonably turned into a general rule for all types of re-use. However, it does occur more and more frequently in highly innovative cases where existing market services for data (or data processing equipment or services) are not readily available on the market. In such cases, there is a greater trend towards public-private cooperation through a myriad of legal forms, where the PSI implications of such cooperation are not always clear. Hereunder a few examples of de facto exclusivity are given, including one from the United Kingdom (as already mentioned above). It should be noted that the United Kingdom is not part of the ten Member States in which legal data collection was carried out.

In 2015, the Royal Free NHS Foundation Trust in London, one of the largest National Health Service providers in Britain, provided Google-owned artificial intelligence company DeepMind with 1.6 million patient records for a trial. Under this trial, the company created an app to assist in the management of acute kidney injury by using technology to track patients’ symptoms and send alerts to doctors. Although this partnership does not in principle exclude other companies from being provided access to NHS data (and re-use it), Google’s lead in this regard will likely distort incentives for competition. Moreover, the NHS will have invested, and continues to do so, resources and human capital in this partnership. This is supported by a Memorandum of Understanding concluded between the two parties, which specifies that they envisage a “broad ranging, mutually beneficial partnership, engaging in high levels of collaborative activity”. The input DeepMind was able to receive from NHS staff members (the app was tested on them and their feedback incorporated) can be seen as an example of such collaborative activity. At EU level, reference could be made to pre-commercial procurements for innovative solutions.76 This funding approach allows new and innovative solutions to be developed in cooperation between public and private institutions, including specific requirements in relation to intellectual property rights allocations.77 However, the latter focus on granting IP ownership rights resulting from R&D undertaken by companies in the PCP to the individual companies in question, with a free license to use the R&D results for internal use as well as the right to require participating companies to license IPRs to third parties under fair and reasonable market conditions. The applicability of PSI law to such constructs is unclear.78 Exclusive arrangements and the digitisation of cultural resources (Article 11(2a)) It should be noted here that in most Member States, arrangements granting exclusive rights made transparent or public remain unclear, and registers in most do not exist. Only in Greece, Italy and Poland have clear rules and practical arrangements been established. Similarly, national law in most Member States does not provide any clarity regarding what “reviewing” the duration of exclusivity (under Article 11(2a)) actually entails in practice. It is only in Slovenia and Sweden that guidance is provided on this. In Estonia, there is no specific provision in relation to exclusive arrangements regarding digitisation of cultural resources. In France, the digitisation of cultural resources was put forward in 2009 as a part of a large loan granted to various cultural actors. After funding was made available, several cultural

76 https://ec.europa.eu/digital-single-market/en/pre-commercial-procurement. 77 https://ec.europa.eu/digital-single-market/en/news/specific-requirements-pre-commercial-procurement- pcp-projects-co-financed-european-commission. 78 https://link.springer.com/article/10.1007/s12553-017-0179-1; https://drive.google.com/file/d/0BwQ4esYYFC04anR4VHM3aXZpMTQ/view; https://www.healthcare.digital/single-post/2018/01/14/DeepMind-and-the-NHS-What-its-really-like-to-use- Googles-kidney-health-app.

actors then entered into public / private partnerships to digitise their collections (e.g. digitisation of old books). However, the law on the re-use of public sector information do not contain any specific provisions on such digitalisation agreements. In Germany, Article 11 of the PSI Directive has been transposed in a literal manner and no information regarding the organisation of exclusive arrangements has been found in the course of this research. In Greece, arrangements granting exclusive rights must comply with the principle of transparency and must be posted on the www.data.gov.gr website and the website of the respective body. In Ireland, there do not seem to be any national rules concerning exclusive arrangements arising from the digitisation of cultural resources, but funding was recently approved for digitisation of cultural resources. In Italy, exclusive rights for digitisation of cultural resources have to be published on the data subject’s website. In the Netherlands, the substantive content of all exclusive rights (excluding achieves) granted must be published in a government journal or other appropriate forum. However, no national register or arrangements were identified. In Poland, all arrangements granting exclusive rights (and reasoning behind it) shall be published in the Public Information Bulletin of certain cultural heritage institution. There is no national unified register of such agreements. In Slovenia, the Information Commissioner has not received a single notification on the granting of exclusive rights (although this is mandatory), either by cultural institutions or by other relevant public bodies. Additionally, the public register on the granting of exclusive rights does not exist in practice. However, guidance is provided on the “reviewing” of such agreements. Technological, financial and administrative aspects should be considered in the review procedure. It would also be likely to take into account the granting criterion which give advantage to those who allow final users free or the cheapest access to digitised material, will use the granted rights the shortest time, guarantee the highest quality of digital format in accordance with relevant standards and fulfil additional necessary conditions for handling the materials to be digitised. In Sweden, there is no guidance on how exclusive rights should be made public. However, it is stipulated that the reviewing of exclusive rights should include technical, economic and administrative considerations. Conclusions The majority of Member States covered do not have exclusive arrangements on digitisation of cultural resources in place. Therefore, it can be concluded that not much seems to be happening in this field.

4.1.3 Section on interplay between the PSI Directive and other EU legal instruments INSPIRE Directive The national legal frameworks implementing the INSPIRE Directive and the PSI Directive interact in many different ways in the 10 Member States. It can be noted, however, that in most cases the INSPIRE Directive serves as an accelerator for the re-use of environmental public geo-spatial data (although not for other domains of public sector information) and as such it could serve as a front runner for other sectors. In Germany, Ireland and Italy, although there is a significant degree of overlap, the scope of the data covered under the PSI Directive is broader than the scope of data covered under the INSPIRE Directive. Also, there are some differences in the scope (e.g. the laws transposing the INSPIRE Directive may under some circumstances apply to private individuals, whereas the PSI regulations do not). Moreover, in Germany, the laws implementing the INSPIRE Directive take priority over the legal provisions transposing the PSI Directive. According to the laws implementing the INSPIRE Directive, the further use of the information recorded there is in no way restricted. Moreover, new definitions (e.g. ("machine-readable format”, "open format”) are added in the laws implementing the INSPIRE Directive in order to facilitate the interoperability in accordance with the principle of compatibility and the usability requirements for spatial data. In Estonia, the national legislation implementing the INSPIRE Directive applies only to spatial data, whereas that implementing the PSI Directive applies to all types of public data, including also spatial data (with specifications). In France, under the law transposing the INSPIRE Directive, the right of access concerns the opening of the information itself (and not documents) which is more in line with current practice and also allows for a wider availability, and an extended communication obligation. However, the law transposing the PSI Directive goes beyond what was provided for in the environmental data regime. Indeed, through the default Open Data principle, it expressly requires data of environmental interest to be published online. It was also noted that the law transposing the INSPIRE Directive helped public sector entities to build and share best practices. Forcing each platform to be “interoperable by design”, it favours collaboration. However, the convergence between the two laws was not immediate and there is still some redundancy between the Open Data platform and the spatial data Platform (both in terms of tools and governance). In Greece, the law implementing the INSPIRE Directive represents a significant portion of the total economic value of the law implementing the PSI Directive and applies without prejudice to the provisions of that law. However, whereas the latter allows public sector bodies the freedom to define what information makes available as well as when and how, and contains only general provisions regarding technical and necessary measures, the

former prescribes what information must be made available within a certain timeframe, in what format it must appear, and how it should be documented and made accessible, and provides exhaustive technical details in relation to the services and meta-data. In the Netherlands, the law transposing the INSPIRE Directive and the PSI Directive can be considered to complement each other by requiring that all spatial information for all designated themes must be published through the INSPIRE portal, the law implementing the INSPIRE Directive ensures this information is made publicly accessible and can potentially fall under the law transposing the PSI Directive. Moreover, through the former’s requirements that the metadata for the spatial data must be provided, the harmonisation of spatial data sets and services is adopted, and access via search, consultation and download services is given, it provides an important contribution to the re-usability of this information. In Poland, there is a lack of synergy in terms of access, accessibility and re-use of public sector data between the legal provisions implementing the Directives. National rules implementing PSI Directive do not refer directly to the rules implementing INSPIRE Directive. There is only general conflict rule which can be applied to the law implementing the INSPIRE Directive, according to which the rules implementing the PSI Directive take effect without prejudice to the law implementing the INSPIRE Directive. In Slovenia, the law implementing the INSPIRE and the PSI Directive are not completely in line with regard to costs that may be charged for re-use. Therefore, the Information Commissioner considers that an applicant may request PSI either on the grounds of either law. In Sweden, the regulation on PSI does not require the authorities to provide access in electronic format, whereas the rules that follow from the INSPIRE Directive do (at least in- between agencies). However, the Swedish mapping, cadastral and land registration authority, together with 19 other authorities have agreed to have one harmonised license in reference to geo data, making the interface between the Swedish legislation implementing the INSPIRE Directive and the PSI Directive work more smoothly. Conclusions No clear conflict has been identified with regard to the objectives and obligations of the two legal instruments. These two Directives seem legally coherent. Please refer to Section 4.2.4 Coherence for further conclusions on the interplay between the PSI Directive and the INSPIRE Directive. IPR / Copyright In most Member States (except for Estonia), national rules (or case law) limit the exercise of copyright protection in order to ensure public access to information. Additionally, some Member States (France, Ireland, Italy, the Netherlands and Poland) limit the exercise of intellectual property rights in order to ensure public access (and re-use) to scientific information. In Slovenia, an Action Plan was issued which will provide open access to

reviewed articles and research data, as well as enable open access to reviewed scientific publications and research data in 2018. Apart from the generic measures limiting the exercise of copyright (e.g. for educational purposes) Member States may have in place, the following national rules are relevant with regard to the re-use of PSI (including national rules limiting the exercise of intellectual property rights in order to ensure public access (and re-use) to scientific information):

Table 7 - National rules on IPR / Copyright relevant with regard to the re-use of PSI

France  Administrations cannot rely on their copyrights in order to limit public access or re-use of information.  Measures have been adopted to facilitate access to scientific writings (e.g. by limiting the duration of embargo clauses, and enabling the making of copies or digital reproductions). Germany  The access to trade or business secrets may be granted as an exception and upon consent of the person concerned. Greece  It is allowed to reproduce a copyright work without the creator’s permission and without remuneration for use in judicial or administrative proceedings in so far as it is justified by the objective pursued. Ireland  For some material containing information about matters of general, scientific, technical, commercial or economic interest, copyright is considered to not be infringed by the copying or making available to the public of copies of that material for the purpose of disseminating that information. Italy  The limitations and exceptions include the use of the work for the benefit of the general public (e.g. use for public speeches).  Several limitations with regard to intellectual property rights (e.g. Italian patent law does not recognise the patentability of scientific discoveries). The  No copyright subsists in laws, decrees or regulations issued by Netherlands public authorities, or in judicial or administrative decisions.  Copyright on scientific work made public by or on behalf of the public authorities must be explicitly reserved. Poland  Legislative acts and their official drafts as well as official documents are excluded from copyright protection.  Results of scientific research are not subject to copyright protection, as it is reasoned that factual findings are not created, but only discovered or disclosed. Slovenia  Copyright protection shall not be provided to official legislative, administrative and judicial texts (and its translations), and to certain environmental information.  In 2015, the Slovenian government issued the Action Plan on Open Access to Scientific Publications and Research Data in Slovenia 2015-2020.

Sweden  Copyright does not subsist in laws and other regulations, decisions by public authorities, reports by Swedish public authorities, and official translations of these texts. Source: Spark Legal Network Conclusions The legal provisions in Member States that limit the exercise of copyright protection relevant to the re-use of PSI mainly refer to official public documents (i.e. legislative, administrative or judicial). This suggests that there do not seem to be any problems of coherence between the PSI Directive and national rules on copyright. Moreover, although generally there seems to be limited awareness of the Berne Convention, the identified commonalities between the Member States nevertheless seem to stem from this Convention. This Convention leaves it open to the countries party to the convention to legislate “the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts” in the way they see fit.79 It should also be considered that there are many cases in which making materials subject to copyright is not necessary, or provides no benefit. In such cases, the tendency to over-apply copyrights should be resisted. In this context, it may also be noted that the proposed amendments to the Copyright Act provide for an exception to copyright protection for material used by research institutions, implying that copyright should in certain cases indeed be restricted when appropriate. Please refer to Section 4.2.4 Coherence for further conclusions on the interplay between the PSI Directive and the Copyright Directive. Best practices Most Member States list materials that are not copyright protected (e.g. legislation, court decisions, official guidelines, administrative decisions), which leads to the conclusion that this is beneficial to the process of re-use of such documents. Database Directive In most Member States (except for Estonia, Ireland and Sweden), there are national rules (or case law) limiting the exercise of database rights in order to ensure public access to information, or in order to preserve competition. In France and Slovenia, the exercise of database rights is limited further – going beyond simply providing access to e.g. official documents. In France, although some court decisions have limited openness of public data to ensure sui generis right respect, the administration may not enforce its sui generis rights against the free re-use of database.

79 Article 2(4) of the Berne Convention for the Protection of Literary and Artistic Works (http://www.wipo.int/treaties/en/text.jsp?file_id=283698).

In Germany, the reproduction of a substantial part of a database may be permissible for private or personal scientific use or for purpose of illustrative teaching. Moreover, statutory instruments, official decrees and official notices, as well as decisions and official head notes of decisions do not enjoy database right protection. In Greece, a legitimate user of a database that has been made available to the public can re- use substantial part of its content without the permission of the database’s manufacturer for educational or research purposes, for public security reasons, or to be re-used in judicial or administrative proceedings. In Italy, any insubstantial part of a database made available to the public may be re-used. Furthermore, the user can access and visualize the database (e.g. for educational or research purposes), without the author’s consent, but permanent reproduction of substantial parts of a database shall always be subject to the right holder’s authorisation. In the Netherlands, public authorities are excluded from relying on database rights with respect to databases of which it is the producer (unless the right is expressly reserved) and for which the contents are formed by laws, orders and resolutions promulgated by it, legal decisions and administrative decisions. In Poland, any insubstantial part of a database made available to the public may be re-used. Moreover, a substantial part of such a database may be borrowed for personal use, as an illustration (for didactic or research purposes) and for the purposes of public safety, or legal or administrative proceedings. In Slovenia, a request for re-use of a database may only be denied if the information is protected by the intellectual property rights of third parties. In cases where third party database rights have not been transferred to the public body, only copying (in digital or physical format) of a database considered to be public sector information is not allowed, while other forms of access (insight into the document) are allowed. In cases the public body is the owner of the right to reproduction of the database, the right to access must be granted also in the form of providing digital or physical copy of the requested public sector information. Conclusions In the majority of Member States covered under this study, database rights are limited by national rules or case law (e.g. allowing re-use of databases in certain cases). Additionally, case law of the Court of Justice has significantly eroded the scope of the database rights as created by the Database Directive. In particular, the ECJ has limited the protection of the act of collection, which does not concern the value of the data itself, but the investments made

by the (proclaimed) database right owner to bring together the data.80 Thus, there seems to be no issues with coherence between the PSI Directive and the Database Directive. Please refer to Section 4.2.4 Coherence for further conclusions on the interplay between the PSI Directive and the Database Directive. Data protection Public sector information containing personal data In seven Member States (Estonia, France, Germany, Italy, the Netherlands, Poland and Slovenia), there are provisions in the national PSI legislation, or in the legislation on access to information which also applies to PSI re-use, which regulate the instances when public sector information contains personal data. In one Member State (Greece), the relevant provisions are to be found in the administrative law. Finally, in two Member States (Ireland and Sweden), the PSI legislation does not address the possibility of public sector information containing personal data. In Estonia, the re-use of public sector information containing personal data may be restricted if giving it to public use would significantly breach the “inviolability of private life of the person”. In France, administrations must respect data privacy and published administrative documents containing personal data shall be anonymised irrespective of the agreement of the person concerned (unless it would cost disproportionate efforts). In Germany, in cases where the person concerned does not agree to the disclosure or re-use of their data, the relevant authority needs to decide whether the right to access of information shall prevail over the protection of personal data. Moreover, sensitive personal data may only be transmitted or re-used if the third party expressly consented. In Italy, the Legislative Decree on the re-use of public sector information, states that it does not apply to documents containing personal data and that in cases where documents containing personal data are re-used, the data subject shall take out personalised licenses, including standard licenses. Moreover, the Data Protection Code applies to public sector information containing personal data. In the Netherlands, the Act on re-use of public sector information does not apply to information relating to personal data held by public sector bodies. Moreover, public sector information that relates to “special personal data” may not be disclosed. However, this restriction does not apply to public registers, which are public and contain personal data (although complete registers cannot be made available for re-use since that would be

80 Case C-604/10 Football Dataco Ltd, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Ltd, Scottish Football League and PA Sport UK Ltd v Yahoo! UK Limited, Stan James (Abingdon) Limited, Stan James PLC and Enetpulse APS.

incompatible with the purpose for which the personal data were collected in these registers and they cannot be made available as searchable files to everyone). In Poland, the privacy of individuals can be one of the reasons to limit the right to public sector information. The right to re-use is limited by the privacy of the individual or business secret. This limitation does not apply to information about persons performing public functions related to performance of these functions, including the conditions of entrusting and performing functions, and cases in which a person or entrepreneur opts-out from this right. In Slovenia, according to Access to PSI Act, the public body shall deny the applicant’s request to access to or re-use of public sector information if the request includes personal data the disclosure of which would constitute an infringement of the protection of personal data in accordance with the Personal Data Protection Act. In Greece, the Code of Administrative Procedure regulates what happens with public sector documents containing personal data. When public documents contain personal data of the person who requests access to them, this person has an undisputable right of access to those documents. If, however, the public document contains secret or confidential information, this information is removed from the document. There are also specific restrictive provisions with reference to data relating to criminal prosecution or convictions. In Ireland, the regulation on public sector information states it does not apply to documents access to which could be excluded by virtue of the Data Protection Acts. In Sweden, as mentioned above, the PSI legislation does not address the possibility of public sector information containing personal data. Guidelines on the need to ensure that only PSI that contains no personal data is made available for re-use Relevant guidelines have been issued or are about to be issued in six Member States (France, Italy, the Netherlands, Slovenia and Sweden). There are no such guidelines in four Member States (Estonia, Germany, Greece, Ireland and Poland). However, in Ireland, in the absence of specific guidelines, it is still stated in many documents, such as circular 12/2016 and the technical framework that open data cannot contain personal data. In France, a “compliance pack” is currently being drafted, with the objective of reconciling data opening with protection of personal data. The Italian Data Protection Authority issued guidelines on the processing of personal data included in public sector documents in 2014. In the Netherlands, the 2009 Data Protection Authority guidelines discuss the review of whether a right of access or a right under the Personal Data Protection Act outweighs the other. In Slovenia, there is not a single specific guideline yet the Information Commissioner regularly issues guidelines on personal data protection. Moreover, there is a rich case-law database of Information Commissioner’s decisions regarding access to public sector information that is personal data. In Sweden, the guidelines state that personal data should not be made available.

Guidelines on the obligation to anonymise or pseudonymise PSI containing personal data before making it available for re-use Relevant guidelines have been issued in eight Member States (Estonia, France, Ireland, Italy, the Netherland, Poland, Slovenia and Sweden). Some relevant examples of guidelines are provided below. In two Member States, no guidelines as such have been issued (Germany and Greece). However, under the German law, personal data must be anonymised or pseudonymised as far as possible. In Estonia, guidelines were issued that explain that information must be anonymised always when there is a possibility that such data may breach the inviolability of private life, unless legitimate interest prevails over that right. In Ireland, there is general guidance from the Data Protection Commissioner regarding “anonymization” and “pseudonymisation”. It applies to PSI even though it does not mention it specifically. In Italy, the 2014 Guidelines state that the general principle of re-use of public sector information does not apply to public sector information containing personal data, otherwise it concerns anonymised data. In the Netherlands, the DPA guidelines state that if an administrative body decides to publish personal data on the internet, it is important that it reasonably uses all existing possibilities to restrict the privacy violation of data subjects, for example by anonymising (making unreadable) their personal data. If the anonymisation of data does not sufficiently protect the privacy of the data subject (e.g. because it is already known to whom the data relate), the deletion of parts of documents may be an option. In Poland, a scientific commentary commissioned by the Ministry of Digital Affairs claims that also in the case of re-use it should be assumed that anonymisation is the first of means of protecting privacy. Guidelines on the obligation to conduct a data protection impact assessment or a similar risk assessment before making PSI containing personal data available for re-use In five Member States (Estonia, Germany, Italy, the Netherlands and Poland), it is provided that a data protection impact assessment needs to be conducted before making public sector information available for re-use. Some relevant examples of requirements in this regard are provided below. In Estonia, guidelines provide that before giving information for re-use, the holder of public information must conduct an assessment on whether the inviolability of private life of a person would be breached by making it available for re-use. This includes checking the legal basis for disclosing any information containing personal data. Furthermore, the Public Information Act requires holders of information to assess the need to establish restrictions on the public use of information. Such restrictions may be necessary to guarantee the inviolability of the private life of persons, protection of copyrights, protection of national security, and protection of business secrets and other restricted information. In Germany, a data protection impact assessment - subject to examination prior to the beginning of processing - needs to be conducted according to general data protection rules. In Italy, the Data Protection Authority guidelines provide for a data protection impact assessment with regards to personal data made available online on public administrations websites.

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Guidelines on the obligation to include data protection provisions in licenses for re-use of PSI containing personal data In most Member States, no such guidelines were issued. However, in France, some Decrees contain such contractual provision, whereas some do not. In Ireland, guidelines state that the license does not grant users the right to use personal information unless sufficiently anonymised or aggregated. In Italy, guidelines provide that the license for re-use should include a personal data protection clause when the re-use concerns personal data and also when the data to be re-used is personal data anonymised. Conclusions The majority of Member States exclude personal data from any type of re-use, adopting a restrictive approach. This is not required by the PSI Directive nor in line with guidance from the Article 29 Working Party. The exclusion of re-use of PSI containing personal data can be appropriate, but it should be the result of an assessment and not an automatic conclusion when personal data is involved. Please refer to Section 4.2.4 Coherence4.2.4 Coherence for further conclusions on the interplay between the PSI Directive and Data Protection. 4.2 Overall evaluation of the changes to the Directive In this section, we provide an overall analysis of the effectiveness, efficiency, relevance, coherence and EU added value of the PSI Directive overall and we point out at specific trends and changes that could be associated with the implementation of its legislative provisions. This analysis is currently based on the best available data and evidence collected through strategic interviews, desk research and literature review and assessment of the insights coming from the legal and Member States data collection.

4.2.1 Effectiveness

This analysis suggests that the PSI Directive has been overall effective in achieving the objectives laid down in legislation:  To ensure that competition in the internal market is not distorted  To enable citizens to gain new ways of accessing and acquiring knowledge  To enable the creation of jobs related to the digital economy and concerning digital contents Although primary data is not always available and proxies must be relied upon, the analysed evidence points out that the Directive has ensured fairer competition in the Digital Single Market, enabled the creation of new jobs and services and, to a lesser extent, enabled citizens to gain new ways of accessing knowledge. The Directive has also increased public sector’s efficiency and brought costs savings to public sector bodies. Data also suggests that the Directive has not yet reached its full potential and that a few (and sometimes new) challenges remain.

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The analysis of the effectiveness of the PSI Directive should be based on the comparison between the objectives laid down in the legislation and the extent to which these have been achieved after the implementation of the provisions. As shown in Figure 2 - Intervention logic of the PSI Directive, the 2013 objectives were the following:

 General objectives: o To ensure that competition in the internal market is not distorted o To enable citizens to gain new ways of accessing and acquiring knowledge o To enable the creation of jobs related to the digital economy and concerning digital contents Each of these aspects will be analysed in the next section. Ensuring that competition in the internal market is not distorted This general objective of the PSI Directive is linked to all the following specific objectives, which were also laid down in legislation:

 To enable the development of Community wide services and to allow exploitation of the economic potential of public sector information  To enhance an effective cross-border use of public sector documents by private companies  To ensure fair, proportionate and non-discriminatory conditions for the re-use of public sector information It is therefore crucial to analyse which effects the PSI Directive had in terms of increase in number and effectiveness of cross-border services, efficiency and economic gains for the public sector and functioning of the PSI market overall. Development of cross-border services and exploitation of the economic potential of information With respect to the further development and the improvement of EU cross-border services and the exploitation of economic potential of information precise (PSI) estimates are difficult to gather and available figures should be considered with caution. The effectiveness of the PSI Directive with respect to the two objectives mentioned above should be measured both in terms of impact on the supply side (availability of more PSI for the data market) and demand side (number of services and products developed as a consequence of the availability of data). Estimates on the supply side are easier to gather as there has been a constant monitoring of the open data maturity and readiness of the EU Member States coming from different initiatives: the European Data Portal, the Open Knowledge Foundation, and the Global Open Data Index etc. The data collected by all these researches all suggest that the availability of public sector data in Europe has increasingly improved over time together with the quality of the open data initiatives.

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For instance, as the picture below from the Open Data Maturity study shows, EU28 countries have significantly improved their open data maturity over the years. According to the 2017 Open Data in Europe Maturity Report, “in 2017 the number of trendsetters in the EU28 has nearly doubled to 14 countries in comparison to only 8 EU countries in 2016”81. Two indicators are associated with Open Data Maturity: open data readiness and the maturity of the national open data portal. Both these indicators have been always progressing in all Member States since the first measurement took place82.

Figure 4 - Open Data Maturity of EU Member States (2005-2020)

Source: Creating Value through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf Furthermore, available evidence suggest that the number of datasets available on the local, regional, national and European portals has been constantly increasing over time. For instance, the statistics for both the European Data Portal and Europeana showed a steady increase in the supply of public sector information83. Similarly, statistics from open data portal at the local, regional and national level confirm this trend. In Poland for instance, the most recent statistical reports highlight for 2017 around 6,722 open datasets from 96 data providers with a +56% increase in the number of APIs available84. In Italy, the total number of public administrations with an open data portal is 405, while the total number of Datasets available in the national portal is 1856885. In the Netherlands, the statistics page on the Dutch national open data portal shows that the amount of available data has doubled between April 2015 and December 2017 with more than 141 entities releasing their data through this website86. Finally, in France, according to opendatamonitor.eu,87 there are now

81 See : Open Data Maturity in Europe 2017, Open Dara for a European Data Economy, European Data Portal, 2017, https://www.europeandataportal.eu/sites/default/files/edp_landscaping_insight_report_n3_2017.pdf 82 See : Open Data Maturity in Europe 2017, Open Dara for a European Data Economy, European Data Portal, 2017, https://www.europeandataportal.eu/sites/default/files/edp_landscaping_insight_report_n3_2017.pdf 83 See : Europeana Usage Statistics 2017 – Q2, https://pro.europeana.eu/page/usage-statistics-2017-q2 and evolution of availability of datasets of EDP, https://www.europeandataportal.eu/data/en/statistics/evolution 84 See Country Factsheet on Poland 85 See Country Factsheet on Italy 86 See Country Factsheet on the Netherlands 87 https://opendatamonitor.eu/frontend/web/index.php?r=dashboard%2Fviewcountry&code=FR

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(January 2018) 15665 datasets referenced on 21 open data catalogs in the country, from 340 publishers88. In all these countries, there are has been a steady progression since 2011. Finally, it must be noted that two European countries (United Kingdom and France) are in the top-5 of the Fourth Open Data Barometer ranking89 with very high scores in terms of readiness, implementation and impact. According to Wiredcraft which refers to the data of the Global Open Data Index90 “Europe is leading open data. European countries take 4 out of the 5 top open data spots”91. This positive feeling is also confirmed by the answers provided to the public consultation: 33% of respondent strongly believe that more data have become available as a result of the PSI Directive and 47.5% also believes in this although to a lesser extent (“slightly agree”) for a total of 80% of positive responses. Therefore, as all this evidence points out, on the supply side of PSI, there has been a constant improvement over time in terms of number of datasets available and open data maturity of European countries. Although it cannot be taken for granted that this trend is the sole result of the PSI Directive, these data seem to suggest that the Directive has definitely contributed to improve the supply market side of PSI in Europe and to make Europe one of the most advanced open data economy in the world. Measuring the demand side and especially the number of products and services created as a result of this availability of data is much more difficult. In general, there is a positive feeling amongst stakeholders about the link between the PSI Directive and the emergence of new products and services although answers to these questions vary a lot. For instance 30% of respondents to the public consultation strongly agree that public sector information is increasingly becoming a source of innovative products and services. Another 42% slightly agree with this statement for a total of 72% of positive answers. This positive view on effectiveness also emerged from interviews in Slovenia and the Netherlands92. However, Polish interviewees stressed that, in their opinions, so far the Directive has not had much of an impact in terms of the number of products or services developed by re-users. They suggest that the Directive did not lead to but rather accelerate the creation of products and services93. This is also mentioned by German respondents. In general, they believe that there has been an increase in the demand for data but this cannot solely be related to the PSI Directive as its provisions in full have only been established in the Open Data Law of July 201794.

88 See Country Factsheet on France 89 OpenData Barometer, Global report, Fourth Edition, World Wide Web Foundation, May 2017, http://opendatabarometer.org/doc/4thEdition/ODB-4thEdition-GlobalReport.pdf 90 See : https://index.okfn.org/place/ 91 See : https://wiredcraft.com/blog/open-data-world/ 92 See Country Factsheets on Slovenia and the Netherlands 93 See Country Factsheet on Poland 94 See Country Factsheet on Germany

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In the impact assessment accompanying the 2013 changes to the Directive, it was mentioned that the PSI market value was of 28 billion EUR in 2008 and could have grown to 32 billion EUR in 2010 based on an annual growth rate of 7%95. However, these figures and this rate did not consider domains for which the re-use of public sector data was not the primary activity96. Our estimations account for the difference between direct and indirect Open Data market size, as shown in the picture below.

Figure 5 - Direct and Indirect PSI market size

250 €

Billions 200 €

150 €

100 €

50 €

- € 2010 2011 2012 2013 2014 2015 2016 2017

Direct Economic Value Indirect Economic Value Total Economic Value

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. According to this measurement, the total market value of PSI has grown from 140 billion euro in 2010 to around 220 billion euro in 2017. This is an increase of 80 billion Euro, i.e. 57% compared to 2010. Concerning the direct economic value, this has also grown from around 30 billion euro to around 50 billion. The indirective economic value however grew even faster as the picture suggests (from 110 billion euro in 2010 to little less than 170 billion in 2017). Looking at the market’s segments, it is clear that the PSI economic value grew in Europe for all sectors considered.

95 See : Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 96 See : Open Data for Economic Growth, The World Bank, 2014, http://www.worldbank.org/content/dam/Worldbank/document/Open-Data-for-Economic-Growth.pdf

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Figure 6 - PSI Market Value per Sector

70 €

60 € Billions

50 €

40 €

30 €

20 €

10 €

- €

Agriculture Industry Construction Trades & Transport ICT Finance and Insurance Real estate Professional services Public administration Arts, entertainment, recreation

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. The data for 2017 give a better comparative idea of the value of PSI for each the segments examined.

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Figure 7 - Value of PSI per sector 2017

Arts, entertainment, recreation 1,1 €

Public administration 64,2 €

Professional services 24,1 €

Real estate 26,1 €

Finance and Insurance 17,7 €

ICT 19,6 €

Trades & Transport 28,9 €

Construction 7,9 €

Industry 29,2 €

Agriculture 1,1 €

€- €10 €20 €30 €40 €50 €60 €70 Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. At the national level, available estimates also indicate a steady growth. In Germany for instance, the estimates for the open data market are of around 12 billion euro in the conservative scenario, 43 billion euro in the realistic scenario and 131 billion euro in the optimistic scenario97. In Poland, a 2014 study highlighted that the value of the PSI market for that year was of around 27,5 million euro and that it would increase to 104 million euro (+280%) between 2014 and 202398. It is clear from this data that the market size for Open Data in Europe has been constantly increasing as all measurements (including our economic model) confirm this trend. Nonetheless, it is hard to find concrete estimates in terms of number of direct services and products which are directly PSI data based. A study on Transport for London (TfL) data strategy suggests that there were around 600 apps in 2016 re-using their data and they generated in between 12 million and 15 million sterling per year99.

97 See Country Factsheet on Germany, data from Marcus M. Dapp, Dian Balta, Walter Palmetshofer, Helmut Krcmar, Pencho Kuzev (Hrsg.): Open Data. The Benefits. Das volkswirtschaftliche Potential für Deutschland, 2016. 98 See Country Factsheet on Poland 99 See : Assessing the value of TfL’s open data and digital partnerships, July 2017, Deloitte, http://content.tfl.gov.uk/deloitte-report-tfl-open-data.pdf

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The study on the European Data Market indicates that there were around 254,000 data companies in Europe (134,000 not considering the UK)100 in 2017. In this study’s forecast, this number will get to in between 163,000 and 188,000 (without the UK) in 2020 according to whether the baseline or high growth scenario is considered101. Taking these figures as references, one could theoretically try to estimate the percentage of data companies which work with Open Data and offer PSI based products and services. However, distinguishing data companies according to the type of data they work with does not make much sense considering that data re-users rely very often on a mix both public and private data at the same time. Notwithstanding the lack of data of quantitative data available on the number of products and services created, qualitative information seems to indicate that there is a number of new cross-border apps for citizens and consumers in Europe. For instance, although the Spanish study on the national open data market highlighted that most of the infomediaries data companies (54%) only sell in Spain, it also showed that 19% of them have a European or international market for their products102. The European Data Portal also provide a number of examples of services having a cross-border dimension103. Furthermore, the data collected in the different Member States allowed to gather a number of examples of cross- border services which were developed in the recent years104. Therefore, it can be argued that the Directive led to an improved cross-border provisions of PSI based products and services. However, a number of issues remains for businesses operating cross-borders and especially in terms of: diversity of charging practices (see Section 4.3.2 Changes to the charging provisions), diversity of access practices and inconsistencies in the data format. These challenges are further discussed below.

Examples of cross-border services

100 See : European Data Market SMART 2013/0063 Final Report, IDC, Open Evidence, 2017, https://a2528ba5- a-c3c32646-s-sites.googlegroups.com/a/open- evidence.com/download/repository/SMART20130063_Final%20Report_030417_2.pdf?attachauth=ANoY7cqC NDznpzTCtr64Wel6-tIUdyaVG64kZPCVe9RwtZXb85o7S4I5qlQkGjyJYDuqxDDp0UUYfJ1LsHUGCk- FMpNs7sdHo9Yzy04ox_svhLLW3U0Yiku6CzwJkgC8YCS9LzxQb4MkXE4mS- GfUojkULMaDbAFTvUJhmIF7rGUuOx3OvuQmg87otqvHxNsZGk7kN7pmsg5UKPQaG5Rh_xkDWTWL18NXUqWv wNCbjB6KTY_Zxp4g3DNqC_BQ61B6z8EgA6oOoIr&attredirects=0 101 See : European Data Market SMART 2013/0063 Final Report, IDC, Open Evidence, 2017, https://a2528ba5- a-c3c32646-s-sites.googlegroups.com/a/open- evidence.com/download/repository/SMART20130063_Final%20Report_030417_2.pdf?attachauth=ANoY7cqC NDznpzTCtr64Wel6-tIUdyaVG64kZPCVe9RwtZXb85o7S4I5qlQkGjyJYDuqxDDp0UUYfJ1LsHUGCk- FMpNs7sdHo9Yzy04ox_svhLLW3U0Yiku6CzwJkgC8YCS9LzxQb4MkXE4mS- GfUojkULMaDbAFTvUJhmIF7rGUuOx3OvuQmg87otqvHxNsZGk7kN7pmsg5UKPQaG5Rh_xkDWTWL18NXUqWv wNCbjB6KTY_Zxp4g3DNqC_BQ61B6z8EgA6oOoIr&attredirects=0 102 See : Characterisation of the Spanish Infomediary Sector, Edition 2016, datos.gob.es, http://www.ontsi.red.es/ontsi/sites/ontsi/files/Characterization%20of%20the%20Spanish%20Infomediary%20 Sector.%20Executive%20Summary.%20Ed.2016.pdf 103 See : https://data.europa.eu/euodp/apps 104 See Country Factsheets

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A number of examples of new services created from public open data and having a cross- border dimension exist. The most famous are undoubtedly those apps combining geolocalisation with data from local authorities and local transport to provide customised journeys and commuting experiences to citizens. Amongst these apps, the Lithuanian app Trafi provides this service for both Lithuanian and Estonian cities. Similar apps are developed in the domain of whether forecasts. WeatherPro for instance builds on meteorological data for providing accurate forecasts for thousands of European locations. In the domain of cultural data, the French app Monument Tracker re-uses data from cultural institutions and combines them with many other datasets in order to provide personalised touristic experience in 55 cities worldwide including 49 in Europe. Many other touristic apps with such characteristics are currently emerging (e.g. Tur4all, WeCity, Historic Atlas etc.). Finally, many business models were created building on the re-use of company data and data from business-registers (and other registers). For instance, Transparentdata in Poland provides real-time company information from multiple comprehensive sources and covering multiple European countries. Realo sells access to relevant housing listings enriched with local data and social content in order to facilitate the understanding of the real estate marketplace in several Member States. All these examples illustrate a growing trend towards establishment of EU-wide services and products. Despite a limited number of remaining barriers, it can be argued that the PSI Directive contributes to the emergence and success of data companies in Europe. However, a precise figure on the exact contribution cannot be established at this stage. Efficiency and economic gains for the public sector Concerning the efficiency and economic gains for the public sector deriving from the PSI Directive, recent studies suggest that: a) substantial costs savings can be identified for the public bodies providing Open Government Data and b) Open Data can saves lives, save time and have environmental benefits105. Although the PSI Directive does not directly impose opening up of data to public administration but rather focuses on making the available data also re-usable, the evidence above can be used as proxy for the benefits of the Directive for the public sector bodies concerned. With respect to the costs savings for the public sector linked to opening up of data, the most recent estimates rely on the Houghton equation for public bodies or so-called agencies106 and on the extrapolation of data collected by the Danish government in 2012. “The

105 See : Creating Value Through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 106 See : Houghton J., “ Costs and benefits of Data Provision, Report to the Australia National Data Service “, Centre for Strategic Economic Studies, Victoria University, September 2011, http://www.ands.org.au/working- with-data/articulating-the-value-of-open-data/costs-and-benefits-of-data-provision

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estimation of the Danish government of 35 million EUR in costs saving by 2020 is used to calculate a percentage to be applied to all countries, based on forecasted GDP in 2020 and average expenditure for the period 2010-2014”107. If one accepts these assumptions, cost saving can be estimated at 0.22% of the Danish government expenditure in 2020108. The figure below shows the estimated cost savings for all European countries based on our model.

Figure 8 - Cost saving public sector EU28

8.000 € 25 €

20 €

15 € 6.000 € 10 € Billions

5 € Saving of gov. expenditure in

4.000 € - € Government Government expenditure inBillions

Government expenditure Savings of Government expenditure

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. The figure above compares public expenditures and cost savings from PSI for public sector bodies between 2010 and 2017 for 28 EU Member States. EU governments are expected to have spent 5.5 trillion Euro in 2010, compared to 6.5 trillion in 2017 (a total increase of 15%). The use of PSI is expected to have saved around 20 billion additional Euro in 2017 that would have otherwise been spent. Based on the quantitative model, government savings have experienced a steep increase since 2015, which is expected to relate to the introduction of the 2013 revision of the PSI Directive. The overall cost savings are broken down by government sector in the picture below.

107 See : Creating Value Through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 108 See : Creating Value Through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf

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Figure 9 - Cost saving public sector EU28 by government sector

Social protection 5,7 €

Education 3,0 €

Recreation, culture and religion 0,6 €

Health 2,4 €

Housing and community amenities 0,5 €

Environment protection 0,4 €

Economic affairs 2,5 €

Public order and safety 1,0 €

Defence 0,7 €

General public services 5,1 €

0,0 € 1,0 € 2,0 € 3,0 € 4,0 € 5,0 € 6,0 € Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. Finally, it is important to notice that cost savings related to the PSI Directive do not only concern the national and European level but apply also for local and regional authorities as shown below.

Figure 10 - Cost saving EU28 different governmental levels

15 € Billions 10 €

5 €

- € 2010 2011 2012 2013 2014 2015 2016 2017

Central government State government Local government

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. As suggested by the graphs above, there is a link between the PSI Directive and cost saving for the public sector at the EU, national and regional levels. Indeed, the PSI Directive contributes to cost savings as it a) created increased awareness on open data and pushed for further datasets release, although indirectly and b) contributed to foster public sector re- use of data itself, besides private re-use. Therefore, the PSI Directive allows the public

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sector to reap significant economic benefits in terms of cost-saving but also in terms of increase in the revenue related to PSI and efficiency gains, as further detailed below. With respect to additional government revenue, our model suggests that EU governments are expected to have generated a total revenue of 5.5 trillion in revenue in 2010, compared to 6 trillion in 2017 (a total increase of 8%). Additional revenues from PSI are expected to have increased from less than 1 billion Euro in 2010 to 7 billion Euro in 2017 (i.e. less than 1% of the total government revenue in 2017). However, additional revenues have spiked since 2015. This could be related to the increased re-use of data after the introduction of the 2013 revision of the Directive. For instance, new services building from PSI might have generated additional income from taxes.

Figure 11 - Additional government revenue EU28

6.200 € 8,0 €

6.000 € 6,0 € 5.800 €

5.600 € 4,0 €

5.400 €

2,0 € Revenue Revenue inBillions

Overall Government OverallGovernment 5.200 €

5.000 € - €

Additional Government Revenue Revenue from BillionsPSI

Government revenue Government revenue incl. PSI sales Additional government revenue from PSI

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. It is also important to notice here that all areas of governments have benefitted from this increase in revenue, as shown in the graph below.

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Figure 12 - Additional government revenue per government sector

2,0 €

1,6 € Billions

1,2 €

0,8 €

0,4 €

0,0 €

General public services Defence Public order and safety Economic affairs Environment protection Housing and community amenities Health Recreation, culture and religion Education Social protection

Source: Estimate by Deloitte based on Eurostat, Capgemini Finally, evidence on the efficiency gains of the PSI Directive for the public sector are more anecdotal and less quantifiable. Probably the best example of which kind of efficiency gains can be exploited thanks to the PSI Directive is the API.gouv.fr initiative of the French government 109 . This platform allows public sector bodies IT systems conceived independently to connect and enable re-use, for public sector bodies, of a number of key public datasets which can be also understood as basis or infrastructure for other public services. Amongst these datasets for instance one can find geo-spatial data, fiscal information, transport data etc. Different level of access and re-use to these datasets are granted as private re-user also have access to the platform. The benefits in terms of efficiency of public services is tremendous and in particular with respect to:

 Time saving for public sector bodies which have real-time automatic access to other bodies’ data. This is particularly important as an access and re-use of data paradox seems to exist in Europe: valuable public sector information are made available for re-use to private players but are not exploited by other public sector bodies110. Indeed, access to each other’s’ datasets is not yet the rule for public administrations in Europe111but rather the exception. Administrative and cultural barriers still exist in this respect.

109 See : https://api.gouv.fr/ 110 Strategic interview 111 Strategic interview

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 Time saving for citizens who do not have to provide the same data several times to different public authorities: in this respect, the API.gouv.fr French initiative explicitly enables the implementation of the once-only-principle re-established for the Tallinn eGovernment declaration112.  Time saving for businesses who can tap into these datasets for multiple reasons such as the development of new services and products but also to increase the efficiency of their operations and smoothing administrative processes and interaction with the public bodies.  Improvement in the decision-making outcome. “Data driven decision making is one of the main benefits of Open Data sharing113”. Evidence-based policy making, substantiated by re-use of data from multiple sources, can lead to improved policy outputs and therefore happier businesses and citizens. Recent studies offer further anecdotal evidence of the increased efficiency of the public sector as result of better open data policies although. The study on Creating Value through Open Data for instance established that re-use of transport data could lead to up to 5,5% less road fatalities in Europe or a significant reduction of congestion costs114. A 2017 study also adds that 7,000 lives can be saved due to faster response and 2,549 hours can be saved in terms of finding parking115. Along the same lines, a study on Transport for London showed that TfL open data supports 42% of travel apps and real-time alerts used by Londoners and is saving £70m-£95m per year in saved time116. Similarly, the 4th OpenData Barometer argues that there is an impact of Open Data on governments’ effectiveness and efficiency, although this is lower than expected117. Hence, not only the PSI Directive has contributed to reduce costs for public sector bodies but it also helped increasing the overall efficiency of the public sector. However the full potential of the Directive in this respect is still to be reached and the marge of improvement remains quite significant118.

112 See : Ministerial Declaration on eGovernment - the Tallinn Declaration, 2017, https://ec.europa.eu/digital- single-market/en/news/ministerial-declaration-egovernment-tallinn-declaration 113 See : Creating Value Through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 114 See : Creating Value Through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 115 See : Analytical Report 9: The Economic Benefits of Open Data, December 2017, European Data Portal, https://www.europeandataportal.eu/sites/default/files/analytical_report_n9_economic_benefits_of_open_da ta.pdf 116 See : Assessing the value of TfL’s open data and digital partnerships, July 2017, Deloitte, http://content.tfl.gov.uk/deloitte-report-tfl-open-data.pdf 117 See : OpenData Barometer, Global report, Fourth Edition, World Wide Web Foundation, May 2017, http://opendatabarometer.org/doc/4thEdition/ODB-4thEdition-GlobalReport.pdf 118 See : OpenData Barometer, Global report, Fourth Edition, World Wide Web Foundation, May 2017, http://opendatabarometer.org/doc/4thEdition/ODB-4thEdition-GlobalReport.pdf

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To ensure fair, proportionate and non-discriminatory conditions for the re-use of public sector information Finally, in terms of overall functioning of the PSI market, stakeholders tend to agree on the positive effect the PSI Directive had in harmonizing practices and providing stability for data providers and re-users although they also highlight some remaining barriers 119 . As mentioned in the Impact Assessment for the 2013 Review of the Directive120, the insufficient clarity and transparency of rules and the incoherent approaches of the Member States were considerable obstacles to the re-use of public sector information in Europe. The Directive helped laying down a level playing field for all stakeholders and clarified rules and approaches for both data providers and re-users121. However, to the question of whether PSI circulated freely in the EU and was easy to re-use for cross-border applications, only around 35% of respondents provided a positive feedback (“strongly agree” and “slightly agree” replies) while the majority (51%) had a more negative view on this topic. This shows that, although progresses have been made in this respect, stakeholders feel that a number of barriers still exist. An example of progresses and remaining barriers can be identified with respect to the use of “exclusive agreements” for re-use. This practice was already mentioned and framed in the 2003 Directive but it was further clarified during the 2013 Review also due to the extension of the Directive to cultural data, a domain in which these types of agreements were frequent (see section on 4.3.1 Extension of scope to cultural data). The modified Directive still authorized exclusive agreements “where an exclusive right is necessary for the provision of a service in the public interest”122 but these should be avoided as far as possible and should obey to competition law. Furthermore, recital 31 of the 2013 Directive establishes that: “where an exclusive right relates to the digitization of cultural resources, a certain period of exclusivity might be necessary in order to give the private partner the possibility to recoup its investment”123. However, even in this case, agreements should not last for more than 10 years and, when this happens, should be subject to frequent reviews. Moreover, it was made clear that the digitised contents should be in the public domain at the end of the exclusivity period. The positive impact of the Directive on this practice is twofold: on the one hand, exclusive agreements were disincentivised through the establishment of a number of strict conditions

119 Strategic interviews 120 See : Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 121 Strategic interviews 122 See : Directive 2013/37/EU of the European Parliament and of the Council and amending Directive 2003/98/EC on the re-use of public sector information (Text with EEA relevance), http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013L0037 123 See : Directive 2013/37/EU of the European Parliament and of the Council and amending Directive 2003/98/EC on the re-use of public sector information (Text with EEA relevance), http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013L0037

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for their validity and, on the other, rules were clarified for all public and private partners recurring to exclusive agreements. The result has been a significant decrease in the number of exclusive agreements for re-use of data in areas where they were traditionally used124 due in part to the finalization of the digitisation of cultural heritage efforts. This is confirmed by the legal analysis as in the majority of the Member States no cases of exclusive agreements could be found (in Estonia, Greece, France, Ireland, Italy and Poland). If the rules on exclusive agreements helped reaching the objective of ensuring fair, proportionate and non-discriminatory conditions for the re-use of public sector information, some challenges related to these practices still remain and new issues are emerging. As illustrated in the legal analysis, in Germany for instance there is a discussion regarding the exclusive access to legal information, and in the Netherlands the prohibition affected the government’s relationship with its official publisher. In Slovenia, it seems that the established costs provide an advantage to some re-users over others. The existence of a number of issues is confirmed by the outcome of the public consultation. Indeed, despite a large part of respondents did not have a clear opinion on this topic (35%), 26% of them suggested that exclusivity agreements are not used only exceptionally and under clear rules. However, rather than formal exclusivity agreements, stakeholders raised concerns for “de facto” exclusivity over certain datasets. This situation of de facto exclusivity might happen for a number of different reasons and in a number of different cases:

 When the information about the possibility of re-using certain datasets is not known by all possible interested parties (e.g. one re-user obtains possibility to re-use a certain high value dataset and the information is not spread voluntarily or involuntarily). As one of the participants to the workshop on PSI re-use mentioned, “many agreements pass below the radar as people are simply not aware they could also have access to those data”125.  In the framework of public-private partnerships (PPPs) or public-private initiatives in specific domains (e.g. health or smart cities) if not enough attention is paid to contract clauses or when exclusivity is considered as another benefit to offer to private parties. Indeed, a recent case of a smart city project in Belgium proved that PPPs can be exploited by private partners to get exclusive re-use right over certain public datasets (e.g. data on street lighting). Insights from the second workshop on PSI Re-use under the PSI Directive also suggests that when public sectors tasks are delegated to third parties (e.g. transport companies etc.) cases of de facto exclusivity over the data emerge126. In certain cases, the public sector itself did not have access

124 See also section on 4.3.1 Extension of scope to cultural data 125 See the Summary of the High-level round-table discussion on Public Sector Information re-use under the PSI Directive, 2018 126 See the Summary of the High-level round-table discussion on Public Sector Information re-use under the PSI Directive, 2018

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to the data and had to wait for a renegotiation of the contract for gaining it127. Recently, the Metropolitan area of Lille and Waze also reached an agreement based on data exchange: the public authority provides Waze with public work’s data in advance (e.g. reparation of roads, construction of new urban elements) and Waze provides the Metropolitan area with data on traffic which might help building better transport and road services. Similarly, the UK National Health Service (NHS) and DeepMind reached an agreement on the digitisation and then exclusive re-use (for DeepMind) of health data128.  When the costs for certain datasets create a market barrier for certain players (e.g. in Belgium only two re-users have full access to business registers data as these cost more than EUR 75.000 per year129). Similarly, in Poland, the fact that a number of financial datasets are paper-only and documents needs to be scanned first before being re-usable makes it possible for only very large players who can allocate human resources to this scanning process to develop services based on these data130. With respect to these situation, the Directive is not fully effective as it does not oblige public authorities to be transparent about exclusive agreements and do not cover many of the case which could emerge in the framework of public-private collaboration. Moreover, in some cases (such as the Polish or Belgian examples on financial and business registers data) there is not even the willingness of the public authority to reach an exclusive agreement with private parties. This is a result of other conditions (e.g. lack of information, costs of the data etc.). Therefore, if overall the Directive has been very effective in ensuring that competition is not distorted, on this particular challenge there is still some ground for improvement. Enabling citizens to gain new ways of accessing and acquiring knowledge “One important underlying condition of a properly functioning democracy is access to information 131 ” and enabling citizens to gain new ways of accessing and acquiring knowledge is one of the objectives of the PSI Directive. However, its effectiveness in this respect is very difficult to assess quantitatively. Only proxies can be used to estimate whether citizens do recur more and more often to open data for informing themselves and learn about governments’ policies and activities. In fact, no data exist on the use of open data as means of information or knowledge acquisition for citizens.

127 See the Summary of the High-level round-table discussion on Public Sector Information re-use under the PSI Directive, 2018 128 See : https://techcrunch.com/2017/06/22/deepmind-health-inks-another-5-year-nhs-app-deal-in-face-of- ongoing-controversy/ 129 For more details on this case, see the section on 4.3.2 Changes to the charging provisions 130 See the Summary of the High-level round-table discussion on Public Sector Information re-use under the PSI Directive, 2018 131 See : Harrison, T., & Sayogo, D “Transparency, participation and accountability practices in open government: A comparative study”. Government Information Quarterly, 2014, 31, 513–525.

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In this context, statistics from large-scale open data portal might provide some indications about trends. Europeana re-use statistics for instance suggest that the number of visitors to the portal increased over time. According to 2017 figures, 56% of them are once only visitors while 22% are recurrent visitors132. Statistics from the French national data portal are also very encouraging. In 2017, the portal had more than 23.000 re-users and over 212.000 unique visitors133. Moreover, data from Germany suggests that there is an increase also in the number of requests to PSBs134. Evidence from other national, regional and local portal show similar trends135 which can be also correlated to the increase availability of data on the portals136 (see also section above). Therefore, as already argued elsewhere in this report, there seems to be a growing interest amongst citizens for accessing open data information. Moreover, stakeholders mostly agree that there is a strong potential to improve citizens’ information through open data137. However, some believe that this potential is still under exploited for different reasons including lack of skills on the public bodies and citizens’ sides, technical issues or lack of awareness around open data138. The literature also suggests that open data can have an impact not only on citizens’ knowledge but also on citizens’ participation: “Citizen participation blossoms when governance is open… Open data generates transparency. That means keeping citizens in the information loop - with two purposes: education and monitoring”139. However, although data is more and more available, open and re-usable and citizens seem to access more frequently open data portals, a number of barriers remain. According to a recent academic article “as with all democratic processes, it ‘takes two to tango’. From the side of the (open data) user, for open data to be effective users should feel a connection to the object or public problem that motivates them to use open data… Individual users may have an interest in exploring a problem but if there is not a well-functioning community there will hardly be democratic interactions. On the side of the administration, information provision and data quality are crucial. If public administrators do not provide the information needed or if citizens do not have access to crucial data due to privacy or security rules, they will or cannot engage in the democratic activities of monitoring, deliberating and participating 140”.

132 See : Europeana Usage Statistics 2017 – Q2, https://pro.europeana.eu/page/usage-statistics-2017-q2 133 See Country Factsheet on France 134 See Country Factsheet on Germany 135 See for instance Helsinki Region InfoShare Portal, http://www.hri.fi/en/ 136 Strategic interview 137 Strategic interview 138 Strategic inteview 139 See : https://www.citizenlab.co/blog/civic-engagement/how-can-open-data-feed-citizen-engagement/ 140 See : Erna Ruijer , Stephan Grimmelikhuijsen, Albert Meijer, “Open data for democracy: Developing a theoretical framework for open data use”, Government Information Quarterly, Volume 34, Issue 1, January 2017, Pages 45-52

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Moreover, this study also underlined that a more context sensitive design of open data platform is needed to make open data work for citizens141. Although indirectly, the PSI Directive may have had an impact on citizens’ access to information through making more PSI available and increasing number of re-users. However, the quality of this impact also seems to depend on other external factors such as the existence of open data communities and design of the portals on which the PSI Directive has no control. This is why some argue that “thus far open data frameworks have broadly failed to foster democratic engagement”142. Enable the creation of jobs related to the digital economy and concerning digital contents The direct link between Open Data and job creation has already been proved and examined in other studies and will not be further investigated here143 but rather taken as granted as basis for our assessment of the Directive. A recent study on Transport for London (Tfl) for instance clearly indicated that the opening up of the data for re-use brought to the direct creation of around 500 direct and 230 indirect jobs for high skilled professionals144. The primary question to be answered within the framework of this general objective of the PSI Directive is therefore not if there is a link between open data and jobs creation but rather whether the Directive has led to an increase in the number of data-related jobs in Europe and, more generally, jobs related to the digital contents. For establishing the link between PSI and jobs creation, it is important to remind here that the total number of persons employed in the EU28 has increased slowly but steadily during the last years according to Eurostat. The number of persons employed in areas of knowledge-intensive activities145 has shown a similar pattern. Thus, it can be expected that the number of citizens employed in jobs relating to PSI has increased similarly from 2010 to 2017, albeit at a slightly higher growth rate.

141 See : Erna Ruijer , Stephan Grimmelikhuijsen, Albert Meijer, “Open data for democracy: Developing a theoretical framework for open data use”, Government Information Quarterly, Volume 34, Issue 1, January 2017, Pages 45-52 142 See : Erna Ruijer , Stephan Grimmelikhuijsen, Albert Meijer, “Open data for democracy: Developing a theoretical framework for open data use”, Government Information Quarterly, Volume 34, Issue 1, January 2017, Pages 45-52 143 See for instance the Shakespeare Review, an independent review of public sector information, 2013, https://www.gov.uk/government/publications/shakespeare-review-of-public-sector-information or Characterisation of the Spanish Infomediary Sector, Edition 2016, datos.gob.es, http://www.ontsi.red.es/ontsi/sites/ontsi/files/Characterization%20of%20the%20Spanish%20Infomediary%20 Sector.%20Executive%20Summary.%20Ed.2016.pdf 144 See : Assessing the value of TfL’s open data and digital partnerships, July 2017, Deloitte, http://content.tfl.gov.uk/deloitte-report-tfl-open-data.pdf 145 According to Eurostat, an activity is classified as knowledge intensive if employed tertiary educated persons represent more than 33 % of the total employment in that activity. See: http://ec.europa.eu/eurostat/statistics-explained/index.php/Glossary:Knowledge_Intensive_Activity_(KIA)

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Figure 13 - Number of persons employed (PSI created jobs) EU28

250 60

50 200

40 150

30 100 KIA 20

10 Thousand Thousand employed PSI in

0 0 Million Million employed overall and in

Total persons employed Total persons directly employed in knowledge-intensive activities Total persons directly employed in the area of PSI

Source: Estimate by Deloitte based on Eurostat, Capgemini, and IDC. Dotted graphs relate to the left, primary axis. The graph above displays the development of the EU28 aggregate number of persons employed in the (data-driven) economy in the period of 2010-2017. The graph shows that in 2010 around 41,000 persons are expected to have been directly employed in the area of PSI. By 2017 this number is expected to have increased to around 49,000. Therefore the total number of persons directly employed in the area of PSI is expected to have increased by 8,000 persons since 2010. The total number of persons employed in knowledge-intensive activities increased from around 65 Million employees in 2010 to around 79 Million employees in 2017. The total number of persons employed in the (data-driven) economy increased from around 207 Million employees in 2010 to around 219 Million employees in 2017. Therefore, the total number of persons employed in the (data- driven) economy is expected to have been increased 12 Million persons. Although they should be taken with caution, these estimates seem to indicate that there has been an increase in the number of data related jobs to which the Directive might have contributed (together with other factors, such as the overall growth in the data economy in Europe146). The precise weight of the PSI Directive and of the other factors influencing this data-related job growth is very difficult to estimate but it can be safely assumed that the Directive’s legal framework has played a significant role in this respect. Therefore, from a general

146 See : http://datalandscape.eu/

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perspective, one could argue that the PSI Directive had a positive effect on the number of data related jobs created from 2016 onwards and that the positive effect will be strengthened in the coming years when the Directive will be fully implemented.

4.2.2 Efficiency

The analysis of the findings on the efficiency of the Directive points to the conclusion that there is a positive balance between the costs and the (quantitative and qualitative) benefits of the legislation. Indeed, benefits related to the implementation of the PSI Directive clearly outweigh the costs imposed on public sector bodies. Therefore, the Directive can be seen as efficient. The outcome of the public consultation provided a positive picture of the overall efficiency of the PSI Directive with respect to two main aspects:

 The relation between the costs borne by the public sector and the benefits for the overall society: around 41% of respondents strongly agree that this ratio is positive and 25% slightly agree (total 66%).  The positive effects of complying with the Directive in terms of improved data management and increased operational efficiency: 45% of respondent strongly agree that these positive effects occurred and around 26% slightly agree (total 71%). However, criticisms emerged with respect to the efficiency of the redress procedure: while around 39% of respondent were unable to provide a reply and chose the “I do not know” answer, a majority of the remaining respondents clearly expressed the dissatisfaction towards the redress procedure (73% of strongly or slightly disagree). All these elements have to be taken into account for establishing the overall efficiency of the Directive although the number of redress procedures completed thus far does not allow to draw final conclusions on the efficiency of these practices147.

147 For instance, in Poland only 15 redress procedures were initiated since the implementation of the Directive, see Country Factsheet on Poland

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Figure 14 - Outcome of the public consultation question on efficiency

Source: European Commission, Public consultation 2017 The efficiency of the PSI Directive has to be measured in terms of ration between the benefits achieved (based on the objectives defined for this policy intervention – see Section on effectiveness above) and the costs that were borne by the stakeholders concerned to get to these results. The section on effectiveness presents some figures that can be used as proxies of the overall benefits brought by the PSI Directive to the European economy and society. These benefits can be both quantifiable and non-quantifiable. The table below presents both categories of benefits which should be considered when measuring the Directive’s efficiency.

Table 8 – Categories of benefits deriving from the PSI Directive

Quantifiable benefits Non-quantifiable benefits Economic value of PSI: 140 billion euro in Increase in the Open Data Maturity of the 2010 – 220 billion euro in 2017 (+57%). EU Member States (including in terms of number of available datasets) Number of persons employed in PSI related Development of new ways for citizens to jobs: 41.000 in 2010, 49.000 in 2017 (+8000 access information and learn about employed persons). governments policies and activities

Additional governmental revenue: from less Development of new apps, services and PSI than 1 billion Euro in 2010 to 7 billion Euro based business models in 2017 Cost savings for the Public Sector: around 20 billion euro in 2017. Source: Deloitte, 2017 Besides the benefits, the PSI Directive has also brought a number of costs to stakeholders. As the Directive’s obligations only apply to public sector bodies at the Member States level, these stakeholders can be considered as those bearing the vast majority of costs related to

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the Directive. Other stakeholders, such as businesses and re-users, can bear costs related to the redress procedures or for polishing and consolidating the data. One could identify different categories of costs related to the implementation of the PSI Directive:

 Administrative costs: resources (funding FTEs) needed to comply with the Directive’s obligation from a legal and administrative point of view (e.g. time and resources spent in figuring out licensing and license related costs, personnel training, communication activities, developing guidelines etc.). For the re-users, administrative costs also include the costs linked to activating the redress procedure when necessary.  Technical costs: resources (funding, FTEs) needed to make the data technically re- usable (cleaning up of the datasets, maintenance of the portals, APIs costs, software costs etc.) Re-users also bear costs in relation to cleaning and consolidation of the data.  Opportunity costs: that is to say the missed benefits coming from a) not making data re-usable and b) charging above the marginal cost (see Section on the evaluation of the changes to the charging provisions). Limited evidence on the abovementioned categories of costs is available at this stage also due to the fact that the PSI Directive has not been fully implemented by all public sector bodies concerned. Stakeholders in the Member States insisted that a) it is too early to estimate the costs and benefits of the Directive and b) reliable figures are not available (yet)148. A few insights on the magnitude and impact of these costs is provided below. Concerning the costs for re-users, data are very scares. The Cadastral Office in the Netherlands determined the effort re-users were making to engage with a specific part of their data represented some 9 million Euros in the 2012-2014 period. They took this as an indicator that the benefits to those re-users should be worth at least 9 million Euros as well, for the re-users to commit such efforts149. Costs for re-users also come from the variety of set-ups for making data reusable: the mode of data provision is indeed reported to vary significantly: whereas some public authorities provide download links or even “deliver” (i.e. transfer) data to company servers, other send CDs via mail150. Participants to stakeholder’s workshops also mentioned that, in case of redress procedure, costs could go up to 100.000 euro for bringing the case in front of the judicial court (as it is the case in Austria)151. However, besides these examples of costs for re-users, there are no other official estimates to rely upon.

148 See Country Factsheet on Italy and Poland 149 See Country Factsheet on the Netherlands 150 See Country Factsheet on Sweden 151 See minutes of the High Level Round Table discussion on Public Sector Information re-use under the PSI Directive

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With respect to administrative and technical costs for PSBs, the Polish government has made estimates concerning the PSI Directive. Calculations from 2015 suggested that the costs for digitization of the public administration (including implementation of the PSI Directive) will be closer to 7.5 million EUR for central public authorities152. More recent calculations on the funding required for 7 national registers for fostering re-use of data (2017-2020) provide additional figures. According to these calculations, the programme will cost around 6.1-6.2 million EUR 153 in total of which around 3.0 million EUR are administrative costs and 3.1/3.2 million EUR are technical154. The tables below shows how these costs will be distributed over the next 4 years and how they are divided in term of cost categories.

Figure 15 - Polish spending plan for fostering re-use of data 2017-2020

Total cost 6 103 400 EUR

Year I (2017) 1 749 442,86 €

Year II (2018) 2 967 476,43 €

Year III (2019) 1 102 114,05 €

Year IV (2020) 284 376,67 €

Source: Polish government, interviews

Figure 16 - Cost categories for investment on re-use of data

Category of spending Cost allocation in EUR IT equipment, programs and licenses, computers and servers 1 173 245,24 € Preparation of project, feasibility study 205 000,00 € IT services, audits and tests, APIs 2 069 047,62 € Legal services, translations, consulting 140 644,52 € Salaries (experts working on open standards, trainers, coordinating 2 195 714,29 € portal design, partners´ costs Other salary related costs 52 723,81 € Training 268 095,24 €

152 See : Stan obecny, perspektywy rozwoju, głowne bariery, rekomendacje dotyczące wsparcia z funduszy europejskich, Raport końcowy dla Ministerstwa Infrastruktury i Rozwoju, 2015, https://www.polskacyfrowa.gov.pl/media/1215/POPC_WISECC_ISP_raportkoncowy_922015.pdf 153 Rounding depending on the exchange rate adopted. 154 The discrepancies in figures are explained by a) the exchange rate and b) the difference between the gross and the net estimations and especially with respect to technical costs.

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Training material 25 788,57 € Information and promotion 150 863,57 € TOTAL 6 281 123 Source: Polish government, interviews According to the estimates above, one could establish that the costs of digitizing public administration (including complying with the PSI legislation) and making data available for re-use corresponds to in between the 0,0007% (seven registers) and the 0,0009% (2015 estimates for digitisation) of the Polish forecasted GDP for 2020 and to the 0,018%-0,022% of Polish public spending for the same year. Similar figures come from the Dutch experience: it was estimate that the process of digitization and making data available for use would represent around 0.01% of public spending in the Netherlands155. It must be noted here however that these figures, although used as proxies for the PSI Directive costs, are much larger than that and cover costs which are not specifically related to the PSI legislation (e.g. establishment of portals, training of officials in data management etc.)156. For instance, according to the Polish PSI representative, out of the costs for digitization detailed above only around 120.000-150.000 euro are a direct consequence of the PSI Directive157. Furthermore, it was calculated that, for Dutch local authorities, the costs of handling data access requests was of around 2.000 euro per year. About a third of that cost is associated with determining the legal aspects involved with a request, if the data can be released or that personal data protection or intellectual property rights play a role. Local authorities did fear high costs as a result of requests up front, but this did not play out in practice158. Finally, an interviewee in Estonia suggested that the overall costs of providing open data to 1% of the IT budget of the public sector including local government institutions159. In general, stakeholders agree that the costs are “reasonable”160. However, these are not official estimates as in Poland and in the Netherlands, like in all other countries examined, the government did not directly collect the data related to the compliance costs of the PSI Directive. Indeed, respondents indicate that the exact costs

155 See : Algemene Rekenkamer, Trend Report on Open Data, 27 March 2014, https://english.rekenkamer.nl/binaries/rekenkamer-english/documents/reports/2014/03/27/open-data- trend-report/Trend+Report+Open+Data+2014.pdf 156 Where authorities indicate having larger costs concerning data provision for re-use, in practice it turns out that this is due to not distinguishing between Directive related costs and other types of costs, such as modernising information systems and data governance processes, digitisation efforts, wider open data initiatives, and overlap with data-driven management or linked data efforts. See Country Factsheet on the Netherlands 157 See Country Factsheet on Poland 158 See Country Factsheet in the Netherlands 159 See Country Factsheet in Estonia 160 See Country Factsheet on Greece

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made with regards to the implementation and application of the Directive is not routinely tracked by public sector bodies161. Based on all the scattered evidence presented above, our model provides an attempt of generalization of PSI related costs at the EU level (see graph below).

Figure 17 - Cost of PSI EU28

7.000 € 10,2 €

10,0 €

6.000 € 9,8 €

9,6 €

5.000 € 9,4 € Expenditure inBillions

Government Government Revenue & 9,2 € stakeholders inBillions

4.000 € 9,0 € Total costs to open for PSI all

Government expenditure Government revenue Total costs for all public stakeholders affected

Source: Estimate by Deloitte based on Eurostat, Capgemini, Deloitte (POPSIS), data gathered as part of interviews. Dotted graph relates to the left, primary axis. The graph shows that costs related to PSI are only a tiny fraction of the total government revenue and expenditure. The former is accounted for in single-digit billion Euro values, the latter one in accounted for in single-digit trillion Euro values. This means that PSI-related costs account for approx. around 0.1%-0.2% of overall government revenue and expenditure. Moreover, it shows that, whereas government revenue and expenditure increased steadily during this timeframe, costs for public authorities are expected to have decreased with the implementation of the 2013 changes. In 2015, for instance, PSI-related costs are estimated to have been around 10 billion Euro while the value decreased to 9.3 billion Euro in 2017. Although the graph above illustrates the overall trend related to the costs, it is also important to acknowledge that qualitative data collected show differences in the magnitude of the costs to be borne by stakeholders in relation with the PSI Directive. As one of the interviewee put it: “the assessment of initial, one-off costs to make data accessible and/or re-usable varies greatly between organisations depending on their “digital maturity”162 or

161 See Country Factsheet on the Netherlands 162 See Country Factsheet on Sweden

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“digital savviness”163. For instance institutions like the Geological Survey of Ireland (GSI) in Ireland which have always worked with and provided geospatial data to re-users have not reported any major changes in costs apart from the fact that funding has been coming from the government instead from re-users after the Directive was enforced164. It is therefore important to note here that, according to the Open Data Maturity estimates of 2017, Poland (which was used as an example for detailing cost categories) belongs to the “fast tracker” category of countries, which currently gathers 8 Member States (see picture below).

Figure 18 - EU Open Data Country Maturity 2017

Source: Open Data Maturity Report 2017, Open Data for a European Data Economy, 2017, European Data Portal, https://www.europeandataportal.eu/sites/default/files/edp_landscaping_insight_report_n3_2017.pdf It is likely that these countries need higher investments for making data re-usable than countries that are in the “trendsetters” category (half of EU countries). Similarly, one could argue that countries falling in the “followers” (6 EU countries) or “beginners” (0 EU countries) categories need to spend, in average, more than Poland to become “PSI ready”. It becomes hence very difficult to take the Polish estimates as reference for all countries. However, at the high level, if one compares the general costs presented above with the overall benefits of the Directive also discussed in the previous sections it is possible to obtain an overview of the PSI Directive’s efficiency.

163 See Country Factsheet on Ireland 164 See Country Factsheet on Ireland

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Figure 19 - Comparison of costs and benefits of the PSI Directive

300 € 10,1 €

250 €

9,8 €

200 € Billions

Billions 9,6 €

150 € Costs Costs of Opening inPSI

Benefits of Opening inPSI 100 € 9,3 €

Economic benefits of opening PSI Costs to open PSI

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, Shakespeare, Deloitte (POPSIS), data gathered as part of interviews As detailed in the previous sections, the economic benefits of opening PSI are around 250 billion Euro today. In contrast, the costs associated with opening PSI are expected to be around 9.3 billion Euro in 2017. Therefore, from a general perspective, the PSI Directive is efficient. The sections on the evaluation of the 2013 specific changes to the Directive also provide some indications on the overall efficiency of the Directive. These sections point out for example that the changes in the rules concerning charging and data format have been efficient. However, this was found to be less the case for the extension of the scope of the Directive to cultural data. In this domain in fact, the costs borne by cultural institutions seem not completely compensated by the (quantifiable) benefits, at least in terms increase in the demand for and in the actual re-use of data (for the details, see the section on the extension of scope to the cultural data p. 134-138 ). However, the cultural data are currently only a small part of the data covered by the PSI Directive which means that, even being not efficient in terms of these datasets, the Directive could be efficient overall. Finally, the opportunity costs must be considered when discussing about efficiency. The opportunity costs concerning the missed revenue related to the changes in the charging provisions and the establishment of the marginal cost rule are separately discussed below (see section on evaluation of the specific changes of the Directive). In terms of overall opportunity costs regarding data not made re-usable by public sector bodies, recent studies suggest that open and re-usable data creates 0.5% more GDP compared to paid and closed

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public data165. This is important to consider as, from the data collection, it emerged that in most of the countries analysed stakeholders feel that “the most interesting datasets are not opened yet”166. Therefore there is still a high marge of manoeuvre for improving the PSI value overall. Furthermore, anecdotal evidence mentioned in the previous impact assessment study suggests that, with respect to meteorological data for instance, there are major opportunity costs related to insufficient re-usability of data which account to up to 300 million EUR annually167. Moreover, it has been argued that the Open Data and the PSI Directive can also contribute to reducing time wasted in a number of activities such as through improved mobility services or by ensuring that citizens are asked the same data only once through implementation of the once-only-principle. The study on Creating Value through Open Data estimated for instance that 27.9 billion EUR per year could be spared through improving commuting thanks to open data based applications168. This could have a substantial impact also considering that “congestion costs are 1% of the EU GDP”169. Similarly, recent evidence suggests that up to 5 billion EUR per year could be saved at the EU level if the once-only- principle was implemented (also through public sector bodies’ access to each other’s data as consequence of the PSI Directive – see section on effectiveness)170.

4.2.3 Relevance

Evidence suggests that the PSI Directive adoption in 2013 was relevant to the stakeholders’ needs and is still relevant today. However, key emerging trends such as the increase in IoT devices and the growth of the Data Economy might pose some threats to the relevance of the Directive and, in this perspective, changes could be considered to make the legislation future-proofed. The objective of a “relevance analysis” is to verify if there is any mismatch between the objectives of the intervention and the (current) needs or problems. Therefore, to discuss the relevance of the PSI Directive, one should examine two distinct aspects:

165 See : Permission Granted, the Economic Value of Data Assets under alternative delivery regimes, A Lateral Economics Report for the Open Data Institute, 2016, https://theodi.org/research-economic-value-open-paid- data 166 See Country Factsheet on Poland for instance 167 See : Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 168 See : Creating Value Through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 169 See : Creating Value Through Open Data, Study on the Impact of Re-use of Public Sector Resources, 2015, https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 170 See : Study on eGovernment and the reduction of administrative burden, Final Report, 2014, https://ec.europa.eu/digital-single-market/news/final-report-study-egovernment-and-reduction- administrative-burden-smart-20120061

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 To what extent the 2013 changes to the Directive corresponded to real life stakeholders’ needs;  To what extent the overall Directive is still relevant in 2017, 14 years after its first adoption and based on any possible evolution of stakeholders’ needs in the meantime. The outcome of the public consultation draws a very positive picture of the overall relevance of the PSI Directive. The question in the public consultation focused on four aspects in particular:

 Supply of PSI in the Single Market  Sufficient usability of data  Fair market access:  Transparency and accountability With respect to all of them, responses were almost unanimously positive. Concerning the supply of PSI in the Digital Single Market, almost 85% of respondents agreed (slightly or strongly) that the Directive is still relevant. Concerning the aspect of fair market access statistics are very similar (around 85% of respondents). In terms of usability and transparency the figures were slightly lower but equally impressive: 76% of positive replies (slightly agree and strongly agree) to the question concerning the relevance of the directive with respect to sufficient usability of data and 81% with respect to transparency and accountability of PSBs. The question of the consultation concerned the Directive overall. However, as described in section 3.1, in 2013 a number of key changes were brought to the text of the original PSI Directive and especially:

 Extension of the scope to cultural data  Adoption of the marginal cost rule for charging  Obligation to provide the data in a machine readable and re-usable format The findings of the present assignment suggest that all these changes were definitely relevant in 2013 and still are today. The relevance of all these changes is discussed in depth in the Section Evaluation of the specific changes of the Directive and will not be discussed here. From the overall perspective, and based on the analysis of the specific changes and the data available (including from the public consultation), it can be argued that the PSI Directive is still relevant today because: 1) it still responds to a large extent to stakeholders’ needs well and 2) it still fulfills its policy objectives.

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With respect the first point in fact, the academic literature and especially the model developed by Backx in 2003171, suggest that information can only be re-used by third parties if:

 It is known to the re-user  It is attainable for the re-user  It can be used for the intended purpose of the re-user172 The picture below shows how these conditions establish a “theoretical” concentric model for re-use of data.

Figure 20 - Concentric shell model for re-use

Source: Merijn Backx, Gebouwgegevens redden levens. Toegankelijkheidseisen van gebouwgegevens in het kader van de openbare orde en veiligheid (scriptie Technische Universiteit Delft), 2003. BDO 199 The PSI Directive helps establishing these conditions for public data through imposing rules on re-usability of information (the inner circle) and the attainability as well to a certain extent (the second circle). The criterion on usability in fact includes the availability of metadata and the reliance on open and machine readable format, aspects which are both covered by the PSI Directive. Furthermore, the criterion on attainability specifies that information should be legally attainable (for instance through open licenses), available 24/7 and payable (at the lowest cost possible). Once more, the PSI Directive addresses these needs through establishing the marginal cost rule and recommending that licenses are less restrictive as possible. Therefore, with respect to re-users’ needs in terms of usability and

171 See : Merijn Backx, Gebouwgegevens redden levens. Toegankelijkheidseisen van gebouwgegevens in het kader van de openbare orde en veiligheid (scriptie Technische Universiteit Delft), 2003. BDO 199 172 See : Bastiaan Van Loenen, Michel Groete, “INSPIRE empowers re-use of Public Sector Information”, 2014, http://ijsdir.jrc.ec.europa.eu/index.php/ijsdir/article/view/353

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attainability of information, the PSI Directive seems to meet all “theoretical” conditions necessary for re-use to take place173. Furthermore, and more specifically within the legal context of the PSI Directive, it was acknowledged back in 2013 that stakeholders needed:

 Clear, transparent and harmonised rules for access and re-use across all Member States (to avoid uncertainty linked to different approaches and regimes at the national level); and  Access to further datasets (such as cultural data, research data and others); and  Lowering of charging for re-use of data to stimulate development of new products and services; and  Documents to be provided in a standard, machine readable and re-usable format (a PDF document allowed on a website is not re-usable). These needs have been the object of the legislative intervention of 2013 and the rational for the establishments of new rules on charging, data format as well as of the extension of the scope of the Directive to cultural data. Overall, stakeholders’ need have not drastically changes over the past few years and after the implementation of the 2013 changes. On the contrary, some of these needs were even strengthened by the acceleration of the take up of the data economy174. So far, majority of stakeholders interviewed agreed that the PSI Directive responded to these needs (although sometimes not to the full extent – e.g. research data were not included in the Directive in 2013) and that this legislative measure is still relevant today175. Furthermore, in terms of achievement of the established objectives, the insights on effectiveness prove the importance the PSI Directive had in ensuring a playing level field for all players, stimulating the (open) data economy and triggering the development of more data based products and services176. Moreover, although sometimes confusion arose between traditional freedom of information legislation and the re-use of public sector data177, stakeholders agree that the Directive was helpful in pushing for more transparent and open governments178. At this stage, the appraisal of the PSI Directive Relevance and of its changes in 2013 seems rather positive. However, the analysis of the available data suggests that there might be a number of challenges for the future, which could affect the capacity of the PSI Directive to respond to emerging and future stakeholders’ needs and in particular:

173 See : Bastiaan Van Loenen, Michel Groete, “INSPIRE empowers re-use of Public Sector Information”, 2014, http://ijsdir.jrc.ec.europa.eu/index.php/ijsdir/article/view/353 174 See also Section 3.1 on the Opportunities and Challenges for the PSI Directive. 175 Strategic interviews 176 Strategic interviews 177 See : Katleen Janssen, “The influence of the PSI directive on open government data: An overview of recent developments”, Government Information Quarterly, Volume 28, Issue 4, October 2011, Pages 446-456 178 Strategic interviews

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 the scope of the Directive which does not include a number of valuable datasets which re-users find the most valuable and would like to have access to, such as for instance research data and data held by para-public bodies in specific domains (energy, transport, waste etc.). The fact that these bodies are excluded from the PSI Directive hampers the possibility for re-user to develop new products and services and ultimately slows down the growth of the European Data economy.  the lack of rules concerning dynamic data and APIs. If the 2013 rules concerning machine-readable and reusable format already facilitate re-use of data, these provisions might not be sufficient anymore in a world in which data become much more real time (thanks also to increase of Internet of Things Devices) and APIs number increases exponentially. In such a context, stakeholders need more and more frequently to have access to real time information automatically (through APIs) and this technology is becoming increasingly necessary in order to exchange information between PSBs in a seamless way. Although this does not apply to all types of public sector information to the same extent, the PSI Directive might find itself lagging behind if it does not react to this development.  the rules on charging which might prevent SMEs and start-ups from re-using datasets which are charged at or above the marginal costs. As it will be illustrated in the sections on effectiveness and efficiency of the changes to the charging provisions, re-users are increasingly sensitive to the price of data. If Europe wants to create a start-up and SMEs business friendly environment, it needs to lower the market entry barriers for these business players and reduce at a minimum the costs to be borne for the re-use of PSI datasets. Therefore, the PSI Directive is still a relevant tool for achieving a harmonised and functioning market for the re-use of public sector information. Nonetheless, some changes might be necessary to make sure that this Directive is future-proofed and can continue to respond to stakeholders’ needs for the next 5-10 years.

4.2.4 Coherence

The PSI Directive is overall coherent with other relevant EU legislation. In particular, the relationship with the INSPIRE Directive and the General Data Protection Legislation seems to be clear although further improvements could be made. On the other hand, the coherence of the Directive towards copyright rules, the Database directive and the Trade Secret Directive is more questioned. In this respect, stakeholders call for clarification measures and for the adoption of consistent policy objectives at the EU level. The overall coherence of the PSI Directive should be measured both with respect to other relevant EU level legislation and with regard to national legislation. For the second aspect see Section 4.1 – Legal analysis) Concerning the coherence with other EU measures, the sections above provide a summary of the findings collected in the course of this assignment. The key questions concern the relation of the PSI Directive with:

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 The General Data Protection Regulation179;  The INSPIRE Directive180;  The Database Directive181;  The Trade Secret Directive182;  Copyright rules183 and the Orphan work Directive184. Indeed, as emerged from the public consultation these are the areas in which the coherence of the Directive is felt as less optimal. However, the results of the public consultation in this respect should be complemented by other data as only a limited number (less than a half) of stakeholders could answer to these questions. Each of these points is discussed below. PSI Directive and Data Protection A critical challenge in relation to the re-use of public sector information is the protection of personal data: whenever public sector information contains or consists of personal data, defined as information relating to an identified or identifiable natural person, the principles and obligations of data protection law must be adhered to. The primacy of data protection law - i.e. the fact that PSI law must be applied coherently with data protection law and that it does not create any exceptions to it – is explicitly recognised by the PSI Directive185, which explicitly notes in recital (11) that it “should be implemented and applied in full compliance with the principles relating to the protection of personal data in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data”. This is a natural consequence of the

179 See : Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679 180 See : Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur-lex.europa.eu/legal- content/EN/ALL/?uri=CELEX:32007L0002 181 See : Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML 182 See : Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0943 183 See : https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules 184 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:299:0005:0012:EN:PDF 185 And is also reaffirmed by the GDPR, in which recital (154) indicates that “Directive 2003/98/EC of the European Parliament and of the Council (14) leaves intact and in no way affects the level of protection of natural persons with regard to the processing of personal data under the provisions of Union and Member State law, and in particular does not alter the obligations and rights set out in this Regulation.”

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fact that the protection of personal data is recognised as a fundamental right under Article 8 of the Charter of Fundamental Rights of the European Union186. This does not imply by definition that public sector information which contains personal data cannot be made available for re-use. Rather, the Directive requires Member States to determine the conditions under which the processing of personal data is lawful, including in relation to public sector data. Article 1.2 of the amended PSI Directive permits extensive carve-outs in this respect, as it notes that the Directive does not apply to “documents access to which is excluded or restricted by virtue of the access regimes on the grounds of protection of personal data, and parts of documents accessible by virtue of those regimes which contain personal data the re-use of which has been defined by law as being incompatible with the law concerning the protection of individuals with regard to the processing of personal data.” In simpler terms, the applicability of PSI law to PSI containing personal data may be limited to documents that fall under national access rights regimes. If national law on access to public sector information excludes or restricts certain documents for reasons of data protection law, the same exclusion or restriction may be applied to PSI re-use regimes. The exclusion is therefore not automatic: no part of the PSI Directive requires that PSI containing personal data should be excluded from the re-use rules of the Directive. Rather, the PSI Directive requires a triple assessment in relation to data protection:

 Firstly, it should be determined whether the PSI contains personal data.  If so, then it should be determined whether national access regimes exclude or restrict access to the PSI. If this is the case, then the same exclusions or restrictions may be applied to PSI re-use as well. Note that this is a right (the Member States may choose to apply these restrictions), but not an obligation: Member States are permitted to be more permissive on this point.  Finally, the PSI containing personal data which is made available for PSI re-use purposes should only be made available for processing to the extent that this is compatible with applicable data protection law. This triple assessment raises a number of important concerns and practical problems. Firstly, in relation to the first step – assessing whether the PSI contains personal data - it must be recognised that the concept of personal data is very broad. As noted above, it is defined under data protection law as information relating to an identified or identifiable natural person, with the clarification that “an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”.

186 Charter of Fundamental Rights of the European Union, see http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:12012P/TXT

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PSI containing directly identifiable information would of course clearly fall under this definition, but so would information that might not intuitively be recognised as identifiable, such as license plate numbers, location data, IP addresses and behavioural patterns which are stored without directly identifiable information (i.e. without including the names of license plate holders, or of persons at a specific location, etc.). Such information would then qualify as pseudonymous information187, which is considered to be personal data under EU data protection law. The challenges related to pseudonymous data are indicative of a broader concern that affects PSI re-use in particular: when assessing the applicability of data protection law, account must be taken of the full context of data processing activities, including the fact whether the use and combination of multiple datasets – which may all be inherently anonymous and therefore not subject to data protection law – creates a risk of re- identification. This risk can occur when each individual PSI dataset individually does not permit the identification of any individuals – thereby falling outside the scope of data protection law – but the combination thereof enriches the data in a manner that makes identification conceivable. By way of a practical example: various governments may publish purely statistical and therefore anonymous information on e.g. affluence, employment status, marital status, ethnicity, nationality, age distribution and religion in various neighbourhoods. The combination of this information may allow individuals to be singled out, however: there may be only one person in age bracket X, with nationality Y, and marital status Z. That may allow e.g. the determination of the income bracket of that person. In this way, statistical information can be recombined and re-used in a way that permits persons to be identified and profiled to some degree of detail. This is challenging, since it implies that the assessment of whether PSI constitutes personal data must not only be done by the source, but also by the re-user; both are required to observe data protection law when applicable. The consideration of these issues can vary to some extent from Member State to Member State, firstly because the PSI Directive must be implemented into national law, where national choices on how to address data protection challenges can be made. Moreover, data protection law too is presently still addressed by the Data Protection Directive 95/46/C, which has similarly been transposed into national laws. However, variations in national data protection law will be mitigated to some extent by the entry into application of the General Data Protection Regulation 2016/679/EU (the GDPR188), which will replace the

187 Defined in Article 4(5) of the GDPR as any personal data which is processed only in such a manner that it can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person. 188 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and

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Data Protection Directive as of 25 May 2018 and which will be directly applicable in all Member States. This will mitigate national divergences to some extent, although differences in implementation of the PSI Directive will persist. Beyond the GDPR, other legal frameworks may affect the protection of personal data at the national or EU level. At the national level, minor differences in data protection law in general can continue to exist on topics where the GDPR permits national laws or guidelines, such as in relation to data concerning health, and the processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. Furthermore, specific provisions exist at the European level in the context of electronic communications, which are presently subject to the terms of the e- Privacy Directive 2002/58/EC189. This Directive applies to personal data in the specific context of the electronic communications sector, and contains requirements in relation to communications confidentiality, traffic data and location data. It is likely to be replaced in the relatively short term by a newly proposed but not yet adopted e-Privacy Regulation190 that will further harmonise data protection law in the telecommunications sphere and that will ensure that the e-privacy framework remains more closely aligned with general data protection law as enshrined in the GDPR. It is thus clear that the application of data protection law to PSI is not as trivial as it may seem: the applicability of data protection laws is not only subject to an assessment of the source material (is each individual PSI dataset personal data?), but also to an assessment of the use which is made of the material by the re-user (does the use and particularly the combination of PSI datasets result in a qualification as personal data?). Both public sector bodies making PSI available for re-use and the re-users must adhere to data protection law when applicable. For public sector bodies, as mentioned above, this includes an assessment of whether access to the PSI in question is subject to exclusions or restrictions under national law, which may require them to anonymise or pseudonymise the PSI before making it available for re-use, or which may forbid the availability of the PSI as a whole. Since this issue is governed only by national law, there is a risk of excessive carve-outs and exclusions of PSI, since the simplest choice is obviously to exclude as much PSI containing personal data as possible from the scope of PSI legislation191.

repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance); see http://eur- lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32016R0679 189 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications); see http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:en:HTML 190 See https://ec.europa.eu/digital-single-market/en/proposal-eprivacy-regulation for the current status of the proposal. 191 This is also recognised in the European Commission's Guidelines on recommended standard licences, datasets and charging for the re-use of documents, which note that one option for the protection of personal data in PSI “is to adopt a provision excluding personal data from the scope of open licensing altogether”, while recognising that other solutions such as licensing terms or smart notices (which are communicated separately from the license) also exist and may be equally appropriate. See https://ec.europa.eu/digital-single-

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Assuming that the PSI containing personal data may be made available for re-use, the application of the principles of data protection law (both under the current Data Protection Directive and under the GDPR) is not trivial, since several of the principles of data protection law as stated e.g. in Article 5 of the GDPR create some tension with the concept of re-use:

 The lawfulness, fairness and transparency principle requires among other points that the data subject receives appropriate information on the (re-)use which is made of their personal data. A public sector body might satisfy this requirement when publishing PSI under specific terms, but for an aspiring re-user it may be more challenging to provide information to the relevant data subjects.  The purpose limitation principle requires that personal data is not further processed in a manner that is incompatible with the purposes for which it was collected. Since re-use of PSI is not constrained to any particular context, this requires a careful assessment at the side of the re-user. Within the PSI Directive, this is partially addressed by making its rules only applicable to information which is subject to access rights under national law; as recital (154) of the GDPR indicates, the PSI Directive should not apply to documents “which contain personal data the re-use of which has been provided for by law as being incompatible with the law concerning the protection of natural persons with regard to the processing of personal data”.  This can be particularly relevant in a big data/deep learning context, where large amounts of PSI data may be processed in order to discover links and causalities which are not visible to a human observer. The question whether such analysis qualifies as further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (which are considered compatible with the original purposes by default) is context specific and requires country-specific consideration;  The data minimisation principle requires that personal data is adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed; however, in a PSI context the public sector body does not necessarily know the purposes for which the data will be further processed; in practice this puts a large part of the onus on the re-user.  The data must be accurate and, where necessary, kept up to date; this too can be difficult to achieve in a context where a public sector body may not have a continuous communications channel with the re-users that allows corrections to be passed through to them.  The storage limitation principle requires that personal data is kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; this would imply that temporal restrictions must be placed on the availability and use of PSI containing personal data;

market/en/news/commission-notice-guidelines-recommended-standard-licences-datasets-and-charging-re- use

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 And finally, the integrity and confidentiality principle would require public sector bodies to take the necessary measures to ensure appropriate confidentiality; this can be largely met by pseudonymising or anonymising data to the extent required under PSI law. The Article 29 Working Party has provided an Opinion on the application of data protection law to the context of PSI 192 , which predates the GDPR, but the principles and recommendations of which remain applicable. Notably, it strongly recommended that a data protection impact assessment (DPIA) should be conducted before making PSI containing personal data available for re-use. This is an obligation which is presently further supported by Article 35 of the GDPR, which requires a DPIA to be done “where a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons”; this is a general condition which is reasonably likely to be satisfied when making PSI containing personal data available for re-use. The fact that, under the GDPR, public authorities other than courts will mandatorily need to appoint a data protection officer (Article 37.1(a) of the GDPR) will make this recommendation more practically feasible in the future, since it implies that all public sector bodies should be more readily capable of availing themselves of the required expertise to conduct a DPIA. In addition, the Opinion emphasised the need to anonymise personal data in PSI prior to making it available for re-use wherever feasible, while recognising that the Data Protection Directive (like the GDPR that will replace it) sets a high and very demanding bar for considering personal data to be fully anonymous. In practice, for many PSI datasets it is more likely that personal data will be pseudonymised; in this case, the Opinion requires that this is done effectively, either through the public sector body itself or by a trusted third party acting on its behalf. This is also required to mitigate to some extent the aforementioned risk of re-identification. Finally, the Opinion also referenced the possibility of controlling the use of personal data in PSI to some extent through licensing regimes (including by prohibiting re-identification attempts and restricting the purposes of re-use) and through technical measures (including by ensuring that the data is made available through APIs which may be switched off in case of data protection challenges or problems. Thus, while recognising that certain challenges exist, the primacy of data protection law in relation to PSI re-use – in the sense that both the public sector body and the re-user must comply with data protection law in full – is an established part of European law. As the responses to the public consultation seem to suggest, this is also fairly well understood by stakeholders as more than a half of them (58% in total counting stakeholders that strongly and slightly agree) believes that the PSI Directive is well aligned and complementary with

192 Opinion 06/2013 on open data and public sector information ('PSI') reuse (WP207), adopted on 5 June 2013; see http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion- recommendation/files/2013/wp207_en.pdf

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PSI. Nonetheless, for a consistent number of stakeholders doubts around these two legal instruments remain and there has been a clear call for guidance in a number of comments to the public consultation. PSI Directive and INSPIRE Directive Geographic data have an important value for both the public and private sector”193. They are amongst the most valuable datasets for both public re-use (to establish the environmental impact of policy measures, to adopt emergency plans in case of natural disaster) and for private re-use (for geo-localisation services for instance, for mobility and energy apps etc.). The fact that its re-use is valuable by both the public sector and the private sector is one of the reasons why geo-spatial information is covered by both the PSI Directive and the INSPIRE Directive.194 The INSPIRE Directive was adopted in 2007 (four years after the adoption of the original PSI Directive) and aimed “to create a European Union spatial data infrastructure for the purposes of EU environmental policies and policies or activities which may have an impact on the environment. This European Spatial Data Infrastructure will enable the sharing of environmental spatial information among public sector organisations, facilitate public access to spatial information across Europe and assist in policy-making across boundaries”195. The INSPIRE Directive applies to 34 geo-spatial content themes (not datasets) and its Article 2 and recital 8 state that the “Directive should be without prejudice to Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, the objectives of which are complementary to those of this Directive”196.The main rationale behind the adoption of the INSPIRE Directive was to ensure sharing of geo-spatial data between Member States and to help policy makers with their (environmental and other policy) choices. The re-use of data by private players is nonetheless also covered by this Directive and this overlap with the PSI Directive must be examined. Stakeholders consulted suggested that the interplay between these two Directives has been working relatively well in the past few years. As also argued in the previous impact assessment on the 2013 changes to the PSI Directive, the latter and INSPIRE are complementary:

193 See: Katleen Janssen, “INSPIRE and re-use of PSI. A model for the sharing and trading of geographic data”, 2004, https://www.law.kuleuven.be/citip/en/docs/publications/508inspire-and-psi2f90.pdf 194 See: Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur-lex.europa.eu/legal- content/EN/ALL/?uri=CELEX:32007L0002 195 See: https://inspire.ec.europa.eu/about-inspire/563 196 See: Recital 8, Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur- lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32007L0002

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 With respect to the sharing of data between public authorities, the INSPIRE Directive have a similar subject matter but different scope of application of the PSI Directive (which does not distinguish between types of re-users)197.  With regard to the public access to spatial information, “the INSPIRE Directive plays a similar role to the PSI Directive and contributes to re-use policies”198. This second point is particularly important. It has been mentioned during the interviews that the PSI Directive had a positive influence on the lowering of charges for re-use of geo-spatial data199. Indeed, the INSPIRE Directive allows charging for data. Article 17.3 of the INSPIRE Directive states in this respect that:

 “Member States may allow public authorities that supply spatial data sets and services to license them to, and/or require payment from, the public authorities or institutions and bodies of the Community that use these spatial data sets and services. Any such charges and licenses must be fully compatible with the general aim of facilitating the sharing of spatial data sets and services between public authorities.  Where charges are made, these shall be kept to the minimum required to ensure the necessary quality and supply of spatial data sets and services together with a reasonable return on investment, while respecting the self-financing requirements of public authorities supplying spatial data sets and services, where applicable.  Spatial data sets and services provided by Member States to Community institutions and bodies in order to fulfil their reporting obligations under Community legislation relating to the environment shall not be subject to any charging”200. Therefore, the INSPIRE Directive does not impose any marginal cost charging (while the general principle that the charges made for the re-use of documents should not exceed marginal costs was introduced in the PSI Directive only in 2013)201; it should be noted that “revenue generated models” are historically quite wide-spread amongst geo-spatial agencies of the Member States. In the United Kingdom for instance, the Ordnance Survey has a long standing tradition concerning selling of business products on top of its public tasks while at the same time also receiving funding from the government to develop certain

197 See: Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 198 See: Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 199 Strategic interview 200 See: Article 17.3, Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur- lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32007L0002 201 See: Article 6, Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information.

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products202. Similarly, the national institute on geographic and forest information (IGN) in France also carries out commercial activities besides its public tasks203. According to the interviewees, the trend toward lowering charges and providing data-sets for free for re-use which originated from the PSI Directive’s 2013 obligations also had an effect on the geo- spatial information. As a combination of the effects of the PSI and INSPIRE Directive, “Geo- spatial agencies saw a slow but radical change in their philosophy: from keeping the data secret and charging high prices for them, to open up and foster re-use for free or a at a limited cost”204. From this perspective, it seems that the complementarity and coherence of the two Directives played out well. However, for the future and due to the 2013 modifications of the PSI Directive, a few risks in terms of coherence could be identified and especially concerning charging. Some stakeholders argued that more guidance is needed to understand what is still allowed for geo-spatial data and services. It was noted that, in some cases, geo-spatial agencies for instance are “borderline” in terms of compliance with the PSI Directive205. Moreover, it was mentioned that issues related to interoperability of metadata could arise if the two communities (PSI and INSPIRE) do not coordinate sufficiently with each other: indeed, the INSPIRE community has its own metadata standards which are not interoperable with the CKAN standards used by the PSI community. Besides these limited issues, there is a sufficient level of coherence between the INSPIRE and the PSI Directive as the results of the public consultation also seem to suggest (75% of respondents strongly or slightly agree that the two Directives are well aligned and complementary). Moreover, “with the requirement to provide datasets and service metadata, the obligation to conform to INSPIRE data specifications and the obligation to do this through discovery, view and download services, INSPIRE makes a very important contribution, in particular, to the legal and physical attainability of public sector geographic information, as well as to its usability206”. For this reason, the two Directives are not only legally coherent but they also mutually help to achieve convergent objectives. Further details on the interplay between the two will emerge from the legal analysis. PSI Directive and other EU legislative measures The coherence of the PSI Directive with other important EU measures is also often mentioned by stakeholders and should be object of analysis within the context of the review. Most frequently, stakeholders point out at the issues related to the relation between PSI and the Database Directive, the Trade Secret Directive and copyright rules (including the Orphan work Directive).

202 See: Ordnance Survey annual accounts 2015-2016, https://www.ordnancesurvey.co.uk/docs/annual- reports/os-annual-report-accounts-2015-16.pdf 203 See: http://www.ign.fr/institut/en 204 Strategic interview 205 Strategic interview 206 See : Bastiaan Van Loenen, Michel Groete, “INSPIRE empowers re-use of Public Sector Information”, 2014, http://ijsdir.jrc.ec.europa.eu/index.php/ijsdir/article/view/353

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PSI and Database Directive The Database Directive “created a new exclusive “sui generis” right for database producers, valid for 15 years, to protect their investment of time, money and effort, irrespective of whether the database is in itself innovative (“non-original” databases)”207. In effect, the Database Directive creates a new form of intellectual property right, which can apply in addition to other intellectual property rights, such as copyright. This means, from the PSI perspective, that if a public sector body has invested “time, money and effort” in establishing a database and wish this investment to be protected, it could eventually recur to the sui generis protection granted by the Database Directive208. Moreover, it can occur in practice that a database which is used by a public sector body in the course of its tasks was in fact created by a third party, including private sector organisations. In such instances, the third party may be the holder of database rights, and may have simply licensed its database to the public sector body for its own internal purposes. In this case, the database is exempted from the PSI Directive, since it does not apply to “(b) documents for which third parties hold intellectual property rights” (article 1.2 (b) of the PSI Directive as amended). As with other intellectual property rights, the exclusion is not automatically linked to the existence of intellectual property rights: a database which is owned by a public sector body is not excluded from the scope of the PSI since the public sector body is itself not a third party. Furthermore and less obviously, even if a third party owns the database rights, a public sector body could choose to make the database available for re-use if its license from the third party would permit this. Thus, in this case the PSI Directive does not apply (since the intellectual property rights to the documents are clearly held by a third party), but re- use might still be permitted in practice. It should also be recognized that the scoping of database rights as created by the Database Directive has been gradually eroded to some extent by case law from the EU Court of Justice. Among several other such cases, the Court of Justice ruled in 2004209 that the Database Directive is intended to provide sui generis protection only to databases for which a significant investment was made in terms of the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of public sector bodies, the significant investments made in creating (including generating) public sector data is therefore irrelevant; a significant investment must be shown in assembling this data in the database. This significantly restricts the applicability of the Directive to PSI Databases (as it does for private sector databases)

207 See : http://ec.europa.eu/internal_market/copyright/prot-databases/index_en.htm 208 See : Combined Evaluation Roadmap/Inception Impact Assessment, Review on the Directive on Re-use of Public Sector Information, European Commission, 2017, http://ec.europa.eu/info/law/better- regulation/initiative/112354/attachment/090166e5b523f50f_en 209 Specifically, in Case C-338/02 of 9 November 2004, Fixtures Marketing Ltd v Svenska Spel AB, see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62002CJ0338

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Available findings suggest that, with respect to legal certainty, there is hence a straightforward relation between the PSI and the Database Directive, at least in the sense that public sector bodies can conceptually avail themselves of the same intellectual property rights protections to their data (and subject to the same restrictions) as private sector parties. The PSI re-use rules does not apply to a public sector database for which a third party holds the sui generis rights. This clarity seems to be confirmed by the results of the public consultation: more than 61% of respondents believe that there is alignment and complementarity between the rules established by the two Directives although a number of negative remarks were also raised in the form or open answers. Nonetheless, the question of coherence also relates to the consistency of the objectives of the two Directives in terms of overall policy targets at the European level. In this respect there seems to be a possible misalignment of policy priorities. If, one the one hand, the objective of the PSI Directive is to “make as much (public) information available for re-use as possible210” (with the smallest number of exceptions possible), the Database Directive seems to go in another direction as it “sought to create a legal framework that would establish the ground rules for the protection of a wide variety of databases in the information age211” (also public datasets). Stakeholders underlined how these different objectives do not seem to be fully compatible212, as the Commission is trying to extend the re-use of public sector information while at the same time providing to data providers an efficient tool for exempting their data from the PSI Directive. It is also worth noting here that the Database Directive has been criticised since its adoption by the academia213 and, to a lesser extent, also in the course of the 2005 Evaluation214 due to its limited economic impact. Recent case law has further added to this criticism, since the scoping of database rights is now subject to significant discussions. Furthermore, a more recent 2015 ruling from the European Court of Justice215 exacerbated this issue, noting that accessibility and re-use of databases can be contractually restricted even if no database rights or copyrights could apply. Certain stakeholder communities even advocate for its repeal or for substantial modifications in the sui generis

210 See : https://ec.europa.eu/digital-single-market/en/european-legislation-reuse-public-sector-information 211 See : DG Internal Market and Services working paper, First evaluation of Directive 96/9/EC on the legal protection of databases, 12 December 2005, http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf 212 See : Strategic Interviews 213 See for instance Bernt Hugenholtz, “Why the Copyright Directive is Unimportant, and Possibly Invalid”, Published in [2000] EIPR 11, p. 501-502, https://www.ivir.nl/publicaties/download/opinion-EIPR.pdf or Rheto Hilty “Five Lessons About Copyright in the Information Society”, Journal of the Copyright Society, 2006 or Annette Kur First Evaluation of Directive 96/9/EC on the Legal Protection of Databases - Comment by the Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich IIC 37, 5 (2006), 551 - 558 (together with Reto M. Hilty et al.). 214 See : European Commission, DG Internal Market and Services working paper, First evaluation of Directive 96/9/EC on the legal protection of databases, 2015, http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf 215 Case C‑ 30/14 of 15 January 2015, Ryanair Ltd v PR Aviation BV, see http://curia.europa.eu/juris/document/document.jsf?docid=161388&doclang=EN

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right regime216. Considering the parallel review of these two Directives there is probably a window of opportunity to re-align the related policy choice and tackle some of the criticisms mentioned above, at a minimum by clarifying or recasting the (in)applicability of the Database Rights Directive in a PSI context. Further evidence concerning the coherence of the two Directives will probably emerge from the ongoing evaluation of the Database Directive217. PSI and Trade Secret Directive The Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure has been adopted by the legislator in 2016 and has not been transposed yet in all the Member States. Nonetheless, some stakeholders already question the clarity of its relation with the PSI Directive and argue that guidance from the Commission in this respect is needed218. Within the scope of the Directive, trade secret are defined as information which:

 “is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;  has commercial value;  are subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret219” This definition of trade secret comes from article 39 of the TRIPS Agreement220 and is purposely rather large, to include many different types of information and this was sometimes considered as a problem in the scientific literature221. In the framework of the PSI Directive, this definition could also be problematic as, legitimately, a number of public datasets could meet the criteria mentioned above. For instance, information held by business registers in many Member States are generally not entirely222 available for free (“generally known or readily accessible”), have economic value

216 See : https://www.communia-association.org/2017/08/30/repeal-sui-generis-database-right/ 217 See : https://ec.europa.eu/digital-single-market/en/news/commission-launches-public-consultation- database-directive 218 Strategic interview and minutes of the participatory workshop on Open Research Data within the context of the Public Sector and Information Re-use Directive 219 See : Article 2, Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0943 220 See : https://www.wto.org/english/docs_e/legal_e/legal_e.htm#TRIPs 221 See for instance, Luc Desaunettes, “What Protection for Trade Secrets in the European Union? A Comment on the Directive Proposal”, EIPR 38, 5 (2016), 255 - 261 (together with Christophe Geiger et al.). 222 Certain information must be shared under the BRIS Directive 2012/17/EU (http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:32012L0017), but this does not cover all information in the business registers, nor does it make all such information freely available in bulk to all interested parties as would be the case in an open data approach.

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and are subject to a number of steps to keep them closed. If interpreted in an extensive manner, many public sector information could fall in the category of trade secrets and would therefore benefit from an exemption to the PSI Directive. Indeed, article 1 of the PSI Directive specifically excludes from its scope documents which are not subject to the national access regimes because they have “commercial confidentiality (e.g. business, professional or company secrets)”223. This will of course also depend on the transposition of the Directive and it is too early to estimate the magnitude of this problem. Nonetheless, this risk is worth mentioning. Furthermore, it is already acknowledged that the relation between trade secret and PSI Directive with respect to research data could also raise a number of more specific issues, as it will be discussed in the impact assessment section. PSI and European Copyright rules (including the Orphan Works Directive) Finally, when discussing the PSI Directive and the main barriers for the re-use rule, stakeholder very often mention the question of the barriers raised by the exception concerning copyright (see also the section on Effectiveness of the extension of scope on cultural data). This is due to multiple reasons:

 Copyright regimes vary according to the Member States. Differences in copyright regimes hamper the implementation of the PSI Directive and the establishment of EU level services224, especially in the domain of cultural data. This was also acknowledged in the Commission impact assessment underpinning the 2013 changes to the PSI Directive225.  Copyright is often used as an excuse not to make data re-usable. However, this topic is very complex and very rarely fully understood by stakeholders226. The treatment of moral rights (as opposed to economic rights) is a particular cause for concern: since moral rights cannot be fully transferred or relinquished in some Member States, public sector bodies in such Member States can claim a concern that PSI re-use of information which is subject to copyrights is impossible, since they can never be sure that the civil servant or other person who contributed to the creation of the PSI might not object to the re-use on the basis of their moral rights.  The rules on copyright for orphan works have not helped in making more cultural data re-useable but rather put high administrative burden on cultural institutions (see Section on 4.3.1 Extension of scope to cultural data).

223 See : Article 1, Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, 2013, http://eur-lex.europa.eu/legal- content/en/TXT/?uri=CELEX:32013L0037 224 Strategic interview 225 See : Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 226 Strategic interview

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As the points mentioned above suggest, the exception for copyright covered PSI has definitely an impact on the effectiveness of the Directive. As with database rights however, it should be stressed that the existence of copyrights in PSI is insufficient to rule it out of scope of the PSI Directive; the Directive only contains an exemption for PSI in which a third party (other than the public sector body) holds intellectual property rights. Public sector bodies on the other hand “should, however, exercise their copyright in a way that facilitates re-use”, as indicated in recital 22 of the Directive. However, even from the point of view of the coherence (and similarly to what was suggested for the Database Directive), there are a number of issues. First, as copyright rules are partly national, what is excluded on the ground of copyright from the re-use rule varies considerably from Member State to Member State. Especially in France, the copyright regime is perceived as particularly strict and not totally consistent with the regimes of the other Member States. Second, as discussed in the section on cultural data below, the burden of clearing copyright from all pieces of information is very high. According to an interviewee, this, combined with the issues raised by the Orphan Works Directive (see Section on coherence of the provision on cultural data), is the reason why in Europeana there is a “data hole” which covers the period from the 1930s’ to the 1980s’. Indeed, cultural data of these years are the most costly to clear from copyright as the copyright holder could be unknown but still alive. Therefore, in terms of legal clarity once more there is no particular inconsistency between PSI and Copyright rules as the relation between the two regimes is transparent. However, for the implementation of the Directive copyright remains an obstacle and especially due to different rules in the Member States and the burden of copyright clearance. These aspects will be further deepened in the next deliverables based on the data collected in the Member States.

4.2.5 EU added value

This analysis suggests that no doubts can be casted on the EU added value of the Directive. Policy intervention at the Member States level could not have achieved the same results to the same extent. Based on the feedback received by stakeholders, it can be argued that the EU Added value of the Directive is unquestioned. As shown in the picture below:

 44% of respondents strongly agree that the PSI Directive has played a role in encouraging the national authorities to open up more public sector data with 41% slightly agreeing (total 85% of replies).  22% of respondents strongly agree that the Directive has facilitated the access to PSI in countries other than their country with 40% slightly agreeing (total 62% of replies).

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 20% of respondents strongly agree that the Directive is conducive to the creation of an EU wide market for product and services with 43% slightly agreeing (total 63% of replies).

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Figure 21 - Answers to the public consultation on the PSI Directive EU Added Value

Source : European Commission, Public Consultation 2017

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The reason for this stakeholders’ uniformity of view resides in the fact that, to address possible market distortions and market failures and to offer a level-playing field to all businesses, the stakeholders consulted tend to agree that national initiatives in the field of PSI would have not been sufficient227. It is also argued that the need for harmonised rules in the area of PSI228 is actually a proof of the added-value of the Directive in a situation in which there was too much divergence between Member States. The need for a well- functioning Internal Market (and Digital Single Market) and the existence of different PSI practices in the Member States229 were truly the drivers for the PSI Directive, which is established based on article 114 of the Treaty on the Functioning of the European Union (TFUE)230 and therefore strongly rooted in a Single Market “logic”. As a side argument, respondents to the public consultation also mentioned the fact the Directive contributed to sharing best practices across Europe and therefore increasing the PSI awareness and the quality of the data provisions across PSBs. Moreover, this conclusion also comes from the analysis of the EU added value of the specific Directive provisions (see section Evaluation of the specific changes of the Directive). Indeed, EU level action can better ensure the harmonisation of approaches in the domains of data format and data charging. Furthermore, for national level initiatives, it would have been more difficult to enable the development of cross-border and EU wide services, also in the domain of cultural data and through common charging rules. It must also be mentioned here that, from the public consultation, also emerged a limited number of negative remarks on the EU Added Value of the PSI Directive. These concerned mainly issues related to different implementation of the rules and lack of harmonisation of practices as well as the absence of a true market of PSI products and services at the EU level. The question of the simplification of the Directive was also addressed by the public consultation. In this respect the Directive was found to be relatively simple to understand but having some marge for improvements. 47.5% of respondents slightly agreed that the Directive is overall simple to understand and implement and 9.5% of stakeholders replied that they strongly agree on this point (total 58% of respondents). Notwithstanding more than 50% of respondents believe that clarity of the PSI Directive is overall good, 32% of them strongly believe that it could be further simplified and made clearer while 30% slightly support this statement (total 62% of respondents). In terms of areas to be clarified,

227 Strategic interviews 228 See : Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 229 Commission Staff Working Paper, Impact Assessment accompanying the document proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directive 2003/98/EC on the Re-Use of public sector information, COM 2011 877 Final, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:1552:FIN:EN:PDF 230 See : Consolidated version of the Treaty on the Functioning of the European Union – Part Three: Union Policies and Internal Actions, TITLE VII: Common rules on competition, taxation and approximation of laws - Chapter 3: Approximation of laws - Article 114 (ex Article 95 TEC), http://eur-lex.europa.eu/legal- content/EN/ALL/?uri=CELEX:12008E114

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stakeholders indicated the importance of further elaborating on the coherence of the Directive with other EU and national legal instruments (GDPR, Database Directive, IPR – see 4.2.4 Coherence) as well as on the questions of licensing, exclusive agreements and cultural data. Furthermore, some requests for clarification concerned the definitions of “information”, “public task” and “reasonable efforts”. However, as the outcome of the question on the overall EU Added Value shows, stakeholders having a negative vision on the Directive are truly a minority. Ultimately, to ensure that the European Data Economy emerges and reaches its full potential and to guarantee equal treatment to all interested re-users, EU level action was and still is needed. Therefore, the assessment of the EU Added value of the PSI Directive is very positive as it was at the time and still is the best mean to have a functioning single market of (also data) services. 4.3 Evaluation of the specific changes of the Directive As previously mentioned, the evaluation of the PSI Directive should focus mainly on the most important changes that were brought to the text in 2013: the extension of the scope of the Directive to cultural institutions, the establishment of the marginal cost rule and the rules on data format. The following sections examine these important aspects and especially their specific effectiveness, efficiency, relevance, coherence and EU added value.

4.3.1 Extension of scope to cultural data

“Cultural data include information about objects, publications, pictures or music collections created and distributed by institutions from cultural and artistic sector”231. As this definition suggests, cultural data can take different forms and cover a wide range of information collected and produced by public cultural establishments in Europe in the framework of their public tasks. The extension of the Directive 2003/98/EC to this type of data and to cultural institutions was the only change brought to the scope of the Directive in 2013. Cultural institutions covered by the Directive are publicly funded archives, museums and libraries (including university libraries)232. The rationale for bringing these bodies within the scope of the Directive was found in the great historic and societal value of cultural heritage in Europe (one of the richest cultural heritage in the world, if not the richest) and in the fact that “cultural heritage resources are seen as objects on which added value can be built for commercial gain and the public benefit”233. The objective of the European legislator was to promote the exploitation of this value by public and private stakeholders

231 See : http://datos.gob.es/en/noticia/vision-general-de-la-apertura-de-los-datos-culturales-escala- internacional 232 Information held by institutions such as Public Broadcasting Organisations, orchestras, operas, ballets and theaters are not included in the scope of the Directive even if these bodies might have sizeable archives. 233 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/

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and to enable the re-use of cultural data for economic, commercial and societal purposes. Indeed, if on the one hand re-use of cultural data can contribute to increase innovation and creativity of the European economy and foster economic growth, it also plays a role in strengthening democracy by increasing transparency and accountability of public institutions. The extension of the Directive to cultural data is therefore expected to:  Increase visibility and exploitation of the European Cultural heritage through opening up of more data  Develop new services (also cross-border) for citizens and businesses based on cultural data  Enable cultural institutions to better exploit the value of the data they hold  Increase transparency for citizens and allow for non-discriminatory access to cultural information in Europe It is important to note here that, although brought within the scope of the Directive, cultural institutions benefit of some exceptions and adaptations, and especially when it comes to charging and to licensing rules. These will be discussed in the coming sections. Finally, it is worth mentioning that with respect to the re-use of cultural data and the promotion of cultural heritage, the PSI Directive is only one of the instruments put in place by the European Commission. Indeed, other parallel initiatives exist which have complementary objectives and especially Europeana234, a trusted source for our collective memory and a representation of European cultural heritage online, and the Commission Recommendation 2011/711/EU on the Digitalisation of Cultural Heritage235. Hence, as also mentioned by stakeholders, the PSI Directive did not represent the starting point for opening up and enabling re-use of cultural data but rather came to reinforce existing trends and initiatives. All these contextual elements are important to bear in mind when discussing the preliminary outcome of the extension of the Directive to cultural data. Effectiveness The data collected on the effectiveness of the Directive with respect to the extension to cultural institutions presents a mixed picture. On the one hand, stakeholders argue that the awareness amongst cultural establishments on the PSI Directive remains rather limited four years after the adoption of the text, with the sole possible exception of libraries which historically have been more advanced for what concerns data and document management.236 This is also confirmed by the data emerging from the survey on cultural data carried out by the team (16 out of 24 respondents have never heard about the PSI Directive before)237.

234 See: https://www.europeana.eu/portal/en 235 See: Commission Recommendations of 27 October 2011 on the digitisation and online accessibility of cultural material and digital preservation, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:283:0039:0045:EN:PDF 236 Strategic Interview with cultural data expert 237 On-line survey on access and re-use of cultural data under PSI

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Moreover, in their latest progress reports (2015-2017) on the implementation of Commission Recommendations on the digitisation and online accessibility of cultural material and digital preservation, Member States provided some comments on the limited effects the Directive had up until this point on cultural institutions. For instance, as mentioned in the Latvian country report “there has been no impact on cultural sector from implementation of the Directive on the re-use of public sector information and there have been only a handful data requests, mainly of statistical data on cultural sector”238. Similarly, the Polish country report argues that “there is little interest in the resources created in museums. Nearly all inquiries to museums related to the making of images of objects for publishing purposes, that is, resources that could be made available also on the basis of the Museum Act239. This is also confirmed by the Polish statistics on access requests shown in the picture below.

Figure 22 - Number of access requests to Polish Cultural Institutions

Source: Report 2017 – Reuse of Public Sector Information Act, One Year after coming into effect, Period June 2016 – April 2017 According to the Polish report, “all requests concerned images of items from the museums’ collections (used mainly for publications) with the exception of the request submitted to the Warsaw Rising Museum which concerned the database of the Warsaw Rising civil victims.

238 See: Progress Report 2015-2017 of Latvia on the implementation of European Commission recommendations on the digitisation and online accessibility of cultural material and digital preservation, 2017, Unpublished document 239 See: Act on Museums, 21 November, 1996 (OJ 5, p.24, with amendments and annexes), https://www.eui.eu/Projects/InternationalArtHeritageLaw/Documents/NationalLegislation/Poland/museumsa ct1996.pdf

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The example of the above requests shows that public sector information use is only narrowly considered in terms of images of resources, while no interest is attracted by databases or metadata owned by cultural institutions which are in fact a rich source of information”240. Moreover, although there are a few dozen applications linked to Polish museums’ data, only a handful of them have been downloaded more than 1000 times241. This limited effect of the provisions on cultural institutions is confirmed by the majority of the data coming from the fieldwork carried out in other Member States. In Germany for instance, stakeholders underlined that no severe changes linked to the Directive could be identified, also due to limited awareness of the EU legislative framework. In Greece, cultural institutions have not yet progressed as far as other countries in opening up their cultural data and the Directive did not have a strong impact on this situation. In Slovenia, cultural institutions have been opening up their data for the last 20 years. For instance, the KAMRA portal242 which contains all digitized material coming from libraries, archives and (to a lesser extent) museums was established already 15 years ago and independently from the PSI Directive. Thus, stakeholders in this country suggested that the 2013 changes to the Directive had limited impact on archives and libraries. Nonetheless, following the revised Directive, Slovenian museums have been forced to trace back IPR for each piece of their collections to understand whether or not the Directive applied to the documents. This mapping was not only costly, but also time consuming. As such, it required the appropriate staff and funds. These cost were mostly covered by the Slovenian government. However, museums had to contribute with their budget too. For this reason, most Slovenian museums charge at marginal cost for accessing and re-using their data, and are against the Directive abolishing this type of charge. Smaller museums are particularly against abolishing marginal costs, given that they received less funding from the government as their collections are smaller and overall they have less visitors243. Contrary to the cases mentioned above, in the Netherlands the impact of the Directive on archives and libraries is evaluated more positively, although stakeholders underlined that the effects were lesser for museums and that confusion arises on the scope of the Directive as, in many cases, museums are both publicly and privately funded244. In this country, the switch to marginal costing rules has also resulted in practical changes. Many archives have stopped charging altogether, and one re-user noticed how various ‘web-shops’ from cultural institutions disappeared. The Amsterdam city archive was mandated to generate a significant part of their budget as revenue, and for them this was a significant change245.

240 See : Report 2017 – Reuse of Public Sector Information Act, One Year after coming into effect, Period June 2016 – April 2017 241 See Country Factsheet of Poland 242 See : https://www.kamra.si/ 243 See Country Factsheet on Slovenia 244 See Country Factsheet on the Netherlands 245 See Country Factsheet on the Netherlands

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Similarly, in Sweden, three important changes were observed because of the Directive: first, new funding was recently made available for digitisation efforts. Second, it was reported as a motivating factor for directors and coordinators in cultural institutions to become more active in opening up data (supporting new projects). Third and most importantly, a number of cultural institutions have changed their charging models towards free distribution of information. However, even in this country, the progresses cannot be linked to the Directive alone. For instance, projects to open up data for re-users were also common prior to the Directive, including the search for adequate licenses and pricing strategies to recover costs of (re-)production and/or distribution of data. However, the PSI Directive was reported not to have contributed much to reduce uncertainty on licenses and charging at the marginal costs in practice. In addition, conflicts are reported to exist between the logic of the PSI Directive and existing copyright laws, which created uncertainty if operational changes towards opening up more data were implemented. Based on the data available, the new rules seem to have not revolutionized the use of data collected in museums”246 as the Directive itself has not created revolutionary changes247. Furthermore, as also suggested in the strategic interviews and by the Spanish progress report, the Polish country report underlines that: “museums have great difficulty in adapting to new regulations”248. Therefore, these data suggest that, at the moment, the PSI Directive had limited effect on cultural institutions. The table below summarises the answer provided by the Member States in the progress reports (2015-2017) on the implementation of Commission Recommendations on the digitisation and online accessibility of cultural material and digital preservation.

246 See : progress Report 2015-2017 of Poland on the implementation of European Commission recommendations on the digitisation and online accessibility of cultural material and digital preservation, 2017, Unpublished document 247 See : Katarzyna Rybicka, Helena Rymar and Alek Tarkowski, Ponowne wykorzystywanie informacji publicznej, Nowe wyzwanie dla instytucji kultury, 2016, https://www.gov.pl/cyfryzacja/udostepniamy- podrecznik-ponowne-wykorzystywanie-informacji-sektora-publicznego 248 See. progress Report 2015-2017 of Poland on the implementation of European Commission recommendations on the digitisation and online accessibility of cultural material and digital preservation, 2017, Unpublished document

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Country Answer Belgium It is too early to have a clear overview of PSI-requests in order to answer to these questions on this moment. The Royal Library (KBR) received one request since the transposition into the Belgian law of the European Directive. The Royal Institute for Cultural Heritage (KIK-IRPA) did not get requests as such (most of their photographs are already available from our website in mid-resolution for personal use). Croatia The Directive was implemented but no data on the impact on cultural institutions is available Cyprus n/a Hungary The directive was implemented in Hungary by Act LXIII of 2012 on the re-use of public data. As of 1 January 2016, the law contains separate rules for cultural public data, and allows for the development of a separate implementation regulation regarding cultural public data that are subject to mandatory provision. However, this implementation regulation has not been worked out yet. Latvia There has been no impact on cultural sector from implementation of the Directive on the re-use of public sector information and there have been only a handful data requests, mainly of statistical data on cultural sector. No specific adaptation actions have been necessary for cultural heritage institutions as there hasn’t been any demands for the data, and most of the data were provided to anybody requesting it free of charge already before the directive. There are no exclusive digitisation agreement in Latvia. Lithuania Memory institutions of the country, digitising cultural heritage objects from the national budget and EU structural funds, must make those objects available for public use without any restrictions and without infringing upon the copyrights of the works. In implementation of the Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, the description of procedure of cost calculation and payment of the fee for documents’ submission is under preparation in Lithuania. It provides the possibility for memory institutions to get a fee for the submitted documents by calculating the submission expenses of the documents. Luxembourg The re-use of metadata, although legally possible through the use of CC Zero licensing, is not of major interest to third parties and there has been little impact of the revised Directive.

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There are no exclusive agreements in place nor planned Netherlands There is knowledge about only a few requests addressed to cultural heritage organisations, and they were initiated only to test the effectiveness of the Directive in practice. Poland The observation of a cultural institutions (e.g. the National Library) shows that from year to year companies, mainly publishing houses, turn to requests for a search in order to find objects for use in book publications and journals. The National Institute of Heritage notes an increase in the demand for digital data describing objects from the register of monuments. Data is provided by the National Heritage Institute in the form of WMS and WFS network services, and for public service providers, data is also provided directly from the database (in the form of e.g. SHP). Such data shall not be made available for commercial purposes. As far as museum collections are considered, a study conducted by the Digital Center and the European Foundation for the Use of Public Data in Poland indicates that there is little interest in the resources created in museums. Nearly all inquiries to museums related to the making of images of objects for publishing purposes, that is, resources that could be made available also on the basis of the Museum Act. In this context, the new rules have not revolutionized the use of data collected in museums. Museums have great difficulty in adapting to new regulations Slovenia No data is available. Spain The application of Directive 2003/98/EC, on the re-use of public sector information, and the transposition thereof into the Spanish legal system by means of Act 7/2007, of 16 November 2007, on the re-use of public sector information, modified by Act 18/2015, of 9 July 2015249 would not seem to have any great impact on cultural institutions, since the data in their catalogues has always been available and in the public domain. The Directive is perfectly aligned with the mission and vision of libraries as regards openness, dissemination and social and public relevance, and has been integrated in a "natural" way as an operational approach within their strategic planning. The Autonomous Communities express the same attitude. The Autonomous Community of Navarre reveals certain

249 See : Ley 37/2007, de 16 de noviembre, sobre reutilización de la información del sector público, https://www.boe.es/buscar/act.php?id=BOE-A-2007-19814

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advances for the application of the Directive and the Spanish national regulations, using its "Open Government" portal to provide information about Open Data and RISP250. There is a specific remote electronic procedure to request public information251. For example, the process for participation in the 2017-2023 Culture Strategic Plan has been included252. No increase in requests has been detected. In general, difficulties are found in application, even within the sphere of culture itself, because of the application of different policies and visions as regards sustainability and institutional funding, policies for access to collections, etc. It is likewise, in general, difficult to disseminate among private individuals and companies the idea of the re-use of cultural data as a source of entrepreneurship, innovation, learning… It demands an active role at the institutional and national level, for the recovery/strengthening of the social and economic relevance of this sector, likewise (and in particular) in the digital sphere. The same applies to the implementation of an organisational culture that accepts and integrates these new models of access and "consumption" of Culture. Spain does not have any record of the usage of exclusive re-use agreements Source: European Commission 2017, tabulation by Deloitte

250 See : https://gobiernoabierto.navarra.es/es/open-data/que-es-open-data/open-data-y-risp 251 See : http://gobiernoabierto.navarra.es/es/transparencia/solicitud-informacion-publica 252 See : https://gobiernoabierto.navarra.es/es/participacion/procesos/plan-estrategico-cultura-navarra-2017-2023

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On the other hand however, increasing digitisation efforts over the last few years have led to increased volumes of digital cultural heritage 253 also available for re-use. Indeed, contributions to the Public Consultation and stakeholders in general seem to agree that “more data held by public sector, including cultural heritage institutions, has become available for re-use”254 in the most recent years. The ENUMERATE survey for instance indicates that 32% of institutions have their collections on-line for re-use (43% libraries and 32% for archives)255. 45% of them also have their metadata online and available. Therefore, supply of cultural data is on the rise. Moreover, statistics from Europeana show a trend of slow but constant growth in the demand for cultural data over the past few years (with some peaks due to specific events)256 which might also be linked to increased availability of data over time (more than 84% of cultural institutions now have a digital collection)257. For instance, in the third quarter of 2017, Europeana acknowledged an increase in media views and pages indexed by Google258 which can be used as a distant proxy for increased demand. Similarly, access to the French National Library (BNF) open data portal has been increasing since its establishment: from 3.6 million visitors in 2015 to more than 4 in 2016259. Therefore, it might be argued that the PSI Directive had a positive impact on the already existing trend of opening up of cultural data amongst cultural establishments and it also affected the fostering of non-discriminatory access overall. However, this impact remains rather limited, as also anticipated by stakeholders back in 2014: “cultural heritage resources are already being shared by cultural heritage institutions in all EU Member States. However, this practice depends on the policies, funds, resources and efforts of a given institution. In this regard, the implementation of the new 2013 Directive is not expected to cause any revolutionary changes”260. There is also a consensus on the fact that a number of obstacles for cultural institutions remain to be addressed:261

 Lack of awareness on the PSI Directive

253 Katarzyna Rybicka, Helena Rymar and Alek Tarkowski, Ponowne wykorzystywanie informacji publicznej, Nowe wyzwanie dla instytucji kultury, 2016, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik- ponowne-wykorzystywanie-informacji-sektora-publicznego 254 See for instance NEMO answer to the public consultation on the PSI Diretcive, http://www.nemo.org/news/article/nc/1/nemo/nemo-responds-to-eu-psi-directive/376.html 255 See: Survey Report on Digitisation in European Cultural Heritage institutions, 2015, http://www.den.nl/art/uploads/files/Publicaties/ENUMERATE_Report_Core_Survey_3_2015.pdf 256 See : Europeana Usage Statistics Q1 and Q2 of 2017, https://pro.europeana.eu/page/usage-statistics-2017- q1 and https://pro.europeana.eu/page/usage-statistics-2017-q2 257 See: https://pro.europeana.eu/page/institutions-with-digital-heritage-collections 258 See: Europeana Usage Statistics Q3 of 2017, https://pro.europeana.eu/page/europeana-statistics-q-3-2017 259 See Country Factsheet on France 260 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/ 261 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/

 Issues related to intellectual property rights  Costs of digitalisation  Data format  Charging provisions In Italy, the biggest problem with respect to the effectiveness of the Directive is the lack of awareness amongst cultural institutions. Indeed, the most important open cultural data initiatives launched by Italian museums took place so far without any link or connection whatsoever with the PSI Directive. Moreover, as far as museums are concerned, greater cultural resistance has been found. Although the stakeholders are aware of the virtuous example of the Rijksmuseum262 in Europe, the opening of data is still partly thought of as a "…clearance sale of its cultural and artistic heritage…”263. Things are slowly starting to change thanks to the guidance of the Ministry of Education, University and Research. However, a majority of stakeholders (wrongly) believe that the PSI Directive contradicts the intellectual property rules in Italy as well as the National Code of Cultural Heritage264. In Germany the situation is similar: stakeholders do know the national framework but are not aware of the PSI Directive directly265. This leads to problems for re-users. Wikipedia for instance complained about a general issue related to access to data from European archives. Indeed data were not provided upon request due to the fact that these bodies were not fully informed about the right of re-use established by the PSI Directive266. Interviews with cultural organisations and stakeholders at the European level confirmed that awareness is the first of the problems linked to the correct and effective implementation of the PSI Directive. However, this is not the only challenge to be addressed. With respect to the question of intellectual property rights, it is important to remind here that the Directive does not apply to a) documents on which third parties hold intellectual property rights and b) documents protected by “industrial property rights” defined as patents, registered designs and trademarks. This is logical as, otherwise, cultural institutions would have to pay for licenses to make these information available (and therefore bear very high costs in this respect)267. Moreover, cultural heritage institutions may take advantage of a specific exception to the general rules on re-use laid down by the Directive as they may

262 See: https://www.rijksmuseum.nl/en/api 263 In reality, as clarified by some stakeholders coming from the Ministry of Education and Culture, there is no formal conflict as the legislation transposing the Directive is to be interpreted "without prejudice to the national legislation". Although the latter has expanded the possibility of reusing information for research and study purposes, it places limits on re-use for commercial purposes. "...We are witnessing two different trends. On the one hand the tendency to consider cultural heritage as a patrimonial asset, and on the other the attitude of favouring the maximum reuse of cultural data to create economic value. These two guidelines are often considered to be divergent. That's why it becomes necessary to find a balance between these two trends ... ". See Country Factsheet on Italy 264 See Country Factsheet on Italy 265 See Country Factsheet on Germany 266 Strategic interview 267 Strategic interview

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choose whether or not to make documents for which they hold intellectual property rights available for re•use268. Within this framework, cultural institutions are confronted with the challenge of understanding and mapping, for each piece of their collection, who holds the intellectual property rights and whether the document/data falls into the scope of the Directive or not. This exercise is easy in certain circumstances (e.g. if the collection refers to Middle-Age artworks for instance which are not covered by copyright anymore) but it might be very difficult for collections concerning the 20th century269. The case of museums showcasing 20th century pictures of the Second World War for instance was often mentioned as an example of very complex IP right situation. Indeed, in such a situation, most of the pictures are from anonymous sources and identify IPR (if applicable) is very burdensome. In some countries, it was also argued that the majority of cultural collections are protected by intellectual properties and copyrights and therefore opening up of data for these collections is a complicated procedure270. In general, this mapping often demand a case-by-case assessment which is complex, costly271 and time consuming. Additionally, in case of doubts, cultural institutions will most likely take a conservative approach and not open up the data for re-use. Finally, copyright legislation is very articulated and rules depend also on national frameworks. The Out of Copyright project mapped all relevant copyright jurisdictions and provided a calculator that is Member States based272. This mapping resulted in a poster with 30 highly complex flowcharts273. The complexity of the IPR and copyright regimes can therefore hamper the effectiveness of the Directive with respect to museums, archives and libraries. A third obstacle for the effectiveness of the Directive concerns the costs and efforts that are required to digitalise cultural heritage of which all stakeholders consulted complained. The Commission is aware of this burden pending on cultural institutions and a number of projects and initiatives have been funded to support these bodies in this journey274. Moreover, the lack of availability of resources for digitalisation might result in the reliance on “exclusive agreements” attributed to specific parties. This has been the case for instance in multiple countries with respect to digitalisation of libraries supported by Google Scholar275

268 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/ 269 It is also important to mention here that stakeholders complained about the Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works which was supposed to simplify the IPR and copyright context in Europe but which brought a number of additional challenges for museums, archives and libraries. See section below on coherence. 270 See Country Factsheet on Greece 271 Case studies examined by European Commission experts, for example, show that it can cost up to €100 to clear the rights for a single book. See: https://ec.europa.eu/commission/commissioners/2014- 2019/ansip/blog/culture-matters-going-digital-way-spread-europes-cultural-heritage_en 272 See : http://outofcopyright.eu/calculators/ 273 See : http://archive.outofcopyright.eu/research/Calculator%20Poster.pdf 274 See : https://ec.europa.eu/digital-single-market/en/news/digitising-our-cultural-heritage 275 Strategic interviews

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or archives supported by Wikipedia276. “An example of exclusive agreement in the cultural sector can be found in the partnership between the British Library and Google Cengage Gale which was granted an exclusive license for the commercial exploitation of more than 3 million pages of magazines historical for a defined period of time. Access to such content would not be possible without investment in digitalisation and the creation a platform by Cengage Gale. Thanks to two models of provision of services (B2B and B2C) access to periodicals is free for educational purposes, but comes at a cost for commercial use. After the expiry of the license, all rights over the resources are returned to the British Library”277. Exclusive agreements are not illegal under the current directive but must be limited in time (10 years) and scope as also illustrated by the example above. According to experts and as also suggested by the Member States progress reports mentioned above, these types of agreements are becoming less frequent in the recent years as most of the digitalisation efforts has already been undertaken and concluded in a number of European countries278. In Spain, Luxembourg, Croatia and Latvia, for instance, such agreements do not exist279. Nonetheless, this challenge might be a limiting factor for the full implementation of the Directive, also knowing that besides una tantum digitalisation efforts, cultural institutions also need to maintain their digital cultural heritage. In this respect, some stakeholders suggest to reduce (to seven maximum) the number of years for which the exclusivity clause can be applied280. Furthermore, as recently underlined by the Polish study on “analysis of problems with the implementation of the provisions of the Act on the Re-use of Public Sector Information in museums", the question of data format might also represent a barrier for re-use of cultural data. “The scale of the European countries efforts in digitisation activities makes the introduction of standards that can facilitate the use of digital copies, including their long term storage, inevitable. Of particular importance is the choice of the appropriate file format — bad choice may significantly reduce the possibility to use”281. The Directive already recommend the use of open formats but allows recurring to any format. In some Member States, museums started to digitise their material in the early 2010s using the PDF format,

276 Strategic interviews 277 (Free Translation) Katarzyna Rybicka, Helena Rymar and Alek Tarkowski, Ponowne wykorzystywanie informacji publicznej, Nowe wyzwanie dla instytucji kultury, 2016, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora- publicznego 278 Strategic interviews 279 See table concerning the information on the on re-use of cultural data contained in the Member States Progress Reports 2015-2017 on the implementation of Commission Recommendations on the digitisation and online accessibility of cultural material and digital preservation 280 (Free Translation) Katarzyna Rybicka, Helena Rymar and Alek Tarkowski, Ponowne wykorzystywanie informacji publicznej, Nowe wyzwanie dla instytucji kultury, 2016, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora- publicznego 281 See : (Free Translation) Katarzyna Rybicka, Helena Rymar and Alek Tarkowski, Ponowne wykorzystywanie informacji publicznej, Nowe wyzwanie dla instytucji kultury, 2016, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora- publicznego

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which is not considered useful by re-users anymore as it is not machine readable. Therefore, now a re-digitisation of already digitised material is occurring to switch to a better data format and this is entailing further costs for cultural institutions282. In Poland, within the context of the “Strategy for the digitisation of cultural goods and the collection, storage and retrieval of digital objects in Poland for the years 2009-2020”, the government is working on the development of uniform metadata standards and technology standards for all types of documents collected in Polish cultural institutions283. European also developed a standard data format for its collection: the Europeana Data Model284. However, in absence of continuous coordinated efforts in the domain of data format, the re-use of cultural data across borders might be hampered. A final obstacle concerns the provisions on charging. In this respect, “the Directive states that libraries, museums and archives are explicitly allowed to charge above marginal cost, but charges “should not exceed the cost of collection, production, reproduction, dissemination, preservation and rights clearance, together with a reasonable return on investment”285. Therefore, cultural data makes one of the exceptions under the PSI Directive, as cultural institutions can (and do) make profit out of it (“reasonable return on investment”). Price can hence be considered a barrier by re-users, and this might also have hampered the full economic exploitation of cultural data in the EU (see also Chapter 4.1.2 on problems, causes and effects). Other more limited challenges such as for instance the question of licensing were also mentioned during the data collection but seems less impactful than those mentioned above. However, what emerged more clearly in terms of effectiveness of the Directive is that: a) It is very early for a full-fledged assessment of the impact of the Directive on cultural institutions, as the transposition in some Member States is still ongoing (e.g. national rules on charging still to be defined) and there is a limited awareness on this topic on the ground. b) The Directive entered into force in a context in which other initiatives on digitalisation and promotion of re-use of cultural data were already established. Distinguishing the effects of these different instruments and weighting their relative impact is difficult. c) Despite a clearer legal framework in terms of re-use of cultural data, a number of barriers remain for the implementation of the PSI Directive and especially in the domains of IPR, copyright, costs of digitalisation and charging.

282 See Country Factsheet on Slovenia 283 See : (Free Translation) Katarzyna Rybicka, Helena Rymar and Alek Tarkowski, Ponowne wykorzystywanie informacji publicznej, Nowe wyzwanie dla instytucji kultury, 2016, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora- publicznego 284 See : https://pro.europeana.eu/page/provide-data-edm 285 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/

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Efficiency Based on the Better Regulation Guidelines and also taking into account the results of the provisions on cultural institutions in terms of effectiveness, the question of efficiency must be raised. As argued above, costs for digitalisation of cultural heritage are widely acknowledged as being very high and as burdensome for the bodies concerned, and especially for smaller players (e.g. local museums and archives). Moreover, costs for digitalisation entail not only a very high initial investment for scanning digitally the entire collections (52% of the costs) but also continuous costs related to digital maintenance and data management (47% of the costs)286. Efficiency must thereby be measured as the total of these investments against the extent to which the objectives have been achieved. The difficulty of the assessment in the framework of the PSI Directive relates to the fact that the decision of cultural bodies to invest in digitalisation might not entirely be a consequence of the PSI Directive also because the PSI Directive does not oblige cultural institutions to digitise their information but rather to make it available if already digitised. This point has been put forwards by a number of players on the ground and in a number of Member States287. As mentioned above, the cultural heritage digitalisation and mapping of IPR process were already ongoing when the Directive was modified and extended to cultural institutions. Furthermore, it is very challenging to distinguish between the costs borne for digitalisation of the heritage and those related to make the data and information available. Normally, cultural institutions do not make a distinction between these two categories of costs. It is therefore difficult to distinguish between the costs that are directly linked to the Directive (for making the data re-usable) and those in which the bodies would have incurred anyway (if they chose to digitise their data). Bearing these limitations of the analysis in mind, available data suggests that the costs borne by cultural institutions are relatively high. For instance, “case studies examined by European Commission experts show that it can cost up to €100 to clear the rights for a single book”288. Evidence from the Member States data collection are aligned on these figures.

Examples of costs related to the digitisation of cultural material:  In the Netherlands, the National Archive have allocated 25 Full Time Employees (FTEs) to digitisation, and spend some 75 million Euro in 15 years (financed by the Ministry of Culture, Science and Education) on digitising their 10% most accessed collections.  It was calculated that, in the Netherlands, to clear IPR right of 8 pictures, it is

286 See : The Costs of Digitising Europe Cultural Heritage, Collection Trusts, 2010, http://nickpoole.org.uk/wp- content/uploads/2011/12/digiti_report.pdf 287 See country factsheet on Germany and Sweden for instance 288 See : https://ec.europa.eu/commission/commissioners/2014-2019/ansip/blog/culture-matters-going- digital-way-spread-europes-cultural-heritage_en

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necessary to staff 1 FTE for an entire day.  In Estonia, the open data platform in which museums can upload their data costs 300.000euro per year to the Ministry of Education.  The establishment of the open data portal of the Italian Central Institute for Cataloging and Documentation (ICCD) was of around 140.000euro out of which 110.000 concerned the digitization of the data and the development of data modelling.  A library in Greece invested 100.000 euro in order to digitise 3.500 volumes of books.  Another Greek library digitized 905.000 pages of printed material from the University's libraries that cost about 260.000 euros.  The digitisation of 300 ancient Greek Manuscripts (150.000 pages) costed to a Greek museum around 900.000 euros.  In France, the National Library (BNF) invests more than 12 million a year in digitisation projects. At the aggregated level, the cost for the digitalisation of cultural heritage in Europe was estimated to be of around 100 billion euro over a 10 years period back in 2010289. This figure can be split according to the types of institutions concerned:

 Museums’ costs will amount to up to 38.73 billion euro by 2020  Libraries’ costs will amount to up to 19.77 billion euro by 2020  Archives’ costs will amount to up to 41.87 billion euro by 2020  The remaining 4.94 billion euro relates to the costs for audio-visual archives In terms of FTEs, the ENUMERATE survey indicates that there are in average 8 people involved in digital heritage activities (5-6 employees and 2-3 volunteers)290. However, it must be noted that in some countries resources for museums are shrinking and that ensuring the availability of FTEs become more and more difficult (in Italy, a museums had a reduction of -80 FTEs over the last 5 years period)291. Moreover, from this survey it emerged that 88% of the resources needed to digitalise collection and make them available come from the cultural institutions budget while the remaining funding is collected through national grants or other funding sources (e.g. regional funding, European funding292).

289 See : The Costs of Digitising Europe Cultural Heritage, Collection Trusts, 2010, http://nickpoole.org.uk/wp- content/uploads/2011/12/digiti_report.pdf 290 See: Survey Report on Digitisation in European Cultural Heritage institutions, 2015, http://www.den.nl/art/uploads/files/Publicaties/ENUMERATE_Report_Core_Survey_3_2015.pdf 291 See Country Factsheet on Italy 292 According to a recent study, 3.2 billion euro from the European Regional Development Fund and 1.2 billion euro from the European Agricultural and Rural Development Fund were spent on cultural heritage during the programming period 2007-2013. Moreover, the 7th Research Framework Programme invested more than 100 million euro in research related to cultural heritage. In addition, funding was provided also through the Creative Europe Programme and through Europeana. See: Cultural Heritage in the Digital Era, COST, 25 October 2017, http://www.cost.eu/events/COST-connect-cultural-heritage-digital-era

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Depending on the Member States considered, the amount of European funding available for digitisation varies293. Data collected in Poland can give an even more precise indications on what the resources are needed for in the framework of digitisation of cultural heritage. The table below presents the cost structure of digitisation initiative in Poland for the period 2016-2019.

Table 10 - Categories of costs for digitisation in Polish museums (in Polish Zloty)

Category of cost Total cost Qualified cost Share in qualified costs

Education and database 1 042 732,50 1 042 732,50 1,51%

IT Infrastructure investments in 3 394 505,51 2 759 760,57 4,00% museums

Digital centres in museums 1 940 125,06 1 577 337,45 2,29%

Design and implementation of the 16 906 796,64 16 904 956,64 24,51% system for opening museum data for reuse (SEZUZ)

Digitalisation 11 015 555,24 10 975 310,09 15,91%

Portal 12 524 880,88 12 524 880,88 18,16%

Design and implementation of the 12 152 937,89 11 751 593,89 17,04% repository of objects (ReCZM)

Promotion 3 902 544,00 3 902 544,00 5,66%

Project management 3 257 510,00 639 600,00 0,92%

Indirect costs 6 897 635,11 6 897 635,11 10,00%

Total 73035222,83 68976351,13 100,00%

Source: Deloitte, 2017 These key figures relate to digitalisation of the heritage in general and the costs related to enabling the re-use of data are only a small percentage of these overall costs. The current research hypothesis is that the specific PSI Directive costs are only a limited percentage of

293 See Country Factsheet on Estonia

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the overall costs borne by cultural institutions when initiating digitalisation of their collections (although IPR clearance is expected to be a significant cost category). In order to say something meaningful on the efficiency of these provisions, the costs mentioned above should be compared to the benefits of the Directive. Benefits for cultural institutions deriving from the PSI Directive seem at this stage much less tangible and quantifiable than costs. Some stakeholders mentioned benefits such as the preservation of fragile material, the interconnection of artefact collections and overall publicity for the institutions concerned. In the Netherlands, most value is perceived by cultural institutions in connecting collections, and to a lesser extent in extending reach. They would most likely value reach extension more if they would find ways of measuring that reach so it can be compared with their current indicators. For instance one photo collection used by Wikimedia is reaching millions of people per month, but the Dutch National Archive does not yet see a way of incorporating those numbers in their own indicators294. In none of the interviews carried out it was possible to discuss quantitative evidence on the revenue generated or the increase in the number of visitors linked to the PSI Directive new obligations. It was mentioned in general that the revenue of museums related to charging for data is limited (no more than 5% of the overall revenue in the case of a museum in Poland and on more than 1% for an Estonian museum)295. Some stakeholders hence suggested that “the loss of revenue is insignificant, as museums financed from the public budget296”. However, there are exceptions depending on the business model of the cultural institution. For instance, in France, the National Library (BNF) generated 213 billion euro from its data licensing system in 2016 which corresponded to 97% of its costs for the same year (218 billion euro)297. Similarly, data on the number of re-users of cultural data is very scattered. In Poland for instance, it is estimated that around 200 apps based on cultural data exist298. In Italy, the Ministry of Education lists 25 which are linked to the national portal on cultural data299. However, many more are developed at the regional and local level (e.g. the Fondazione Torino Musei in collaboration with Google Cultural Institute, has published three apps concerning the local museums). In Sweden, although there seems to be a very high interest amongst citizens, the uptake and re-use of cultural data is considered to be slow300. Similarly

294 See Country Factsheet on the Netherlands 295 See Country Factsheets on Poland and Estonia 296 See Country Factsheet on Poland 297 See Country Factsheet on France 298 See Country Factsheet on Poland 299 See Country Factsheet on Italy 300 See Country Factsheet on Sweden

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in Germany, it was mentioned that only a slight increase in demand for cultural data can be identified, if any, but most is still related to scientific research301. Overall, there are no official figures on the number of re-users in any of the Member States considered. Therefore, in absence of precise figures on revenue and number of re-users, it is very difficult to have an overall picture of the benefits of the Directive for cultural institutions at this stage, also due to the limited effects discussed in the previous chapter. For this reason, one could conclude that a longer timeframe should be considered for analysing the efficiency of the cultural institutions provisions of the Directive as any early evaluation conducted at this stage of the implementation can only over represent costs and under represent benefits. Moreover, it should be underlined that in many cases, cultural institutions have only digitised a small share of their data, so re-users can only benefit if they want to access already digitised data. Digitisation of whole data stocks will take years and the increase in the availability of digitized contents will have an effect on the benefits linked to the Directive in the future. Relevance The assessment of the relevance of the PSI Directive provisions related to cultural data, based on the best available data, is rather positive. Indeed, as previously mentioned, the PSI Directive intervened in an environment in which digitalisation of cultural heritage efforts were already ongoing in many Member States302 and supported this trend by “attempting for the first time to define a general framework for sharing cultural heritage information all around Europe”303. In this respect, at the time of its adoption, the Directive was relevant both vis-à-vis the need of the cultural institutions and the needs of the possible cultural data re-users. For the former, it provided a clear set of rules and a stable level-playing field for starting or continuing in their journey of digitalisation. In this respect, it answered to the need for clarity on possibilities, conditions and limitations for granting re-use of cultural data. The challenge was in fact in the different speed and directions taken by cultural institutions up until that moment in time, which posed risks in terms of harmonious and consistent development of cultural services in the Digital Single Market304. Indeed, as mentioned in an article from 2014, the Directive had the potential to lead to the establishment of Europe

301 See Country Factsheet on Germany 302 See Country Factsheets of Italy, Slovenia, Estonia, Sweden etc. 303 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/ 304 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/

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wide standard rules for the availability of cultural resources, and increase the scale at which cultural heritage information is shared305. For re-users of cultural data, the Directive catered for the need of making more and more data available for re-use, thus responding to an increasing demand for data and transparency and enabling the exploitation of economic potential of data. In general, the re- user community welcomed this measure and the extension of the scope of the Directive to this new domain precisely due to this increase in demand and to the request for more transparency in the public sector306. At the time of its adoption, the Directive was hence relevant to the context and the needs of the main stakeholders. Nonetheless, four years later, the question is to what extent the Directive remains relevant in an evolving context. According to the best available data, the answer to this question is to a certain extent and this is precisely because, according to the stakeholders interviewed, the conditions that made the Directive relevant in 2013 have not radically changed in the meantime307. In particular, it can be argued that cultural institutions still need an EU-wide framework for enabling re-use of their data (as this has not been fully put in place yet – see section on effectiveness) and that re-users’ demand for data and transparency is still stable if not increasing in certain domains308. Nonetheless, due to the fact that the Directive has only recently been transposed in a number of Member States and its effects on the ground are still limited, its relevance also needs to be further tested based on data to be collected in the coming years. In fact, data coming from a number of Member States (e.g. Poland, Slovenia) on the implementation of the Directive (see also section on effectiveness) seems to suggest that the demand for cultural data at the national level might have been over estimated in the past309. In the case of Estonia, it was also argued that demand for certain cultural contents (in Estonian) will not grow more than what it is currently, due to the language and the limited amount of population that can be reached310. However, it is difficult to draw conclusions on this matter as evidence from other Member States seems to suggest a more positive picture. For instance, in the Netherlands, cultural institutions see a good fit with the Directive, as providing access to data is their core task already. Those institutions that are aware have become much more active, and as a

305 See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector-information-in- cultural-heritage-institutions/ 306 See for instance: Open Growth, stimulating demand for open data in the UK, Deloitte, 2013, https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/deloitte-analytics/open-growth.pdf 307 Strategic interviews 308 See: Open Data Barometer, Global Report, Fourth Edition, 2017, http://opendatabarometer.org/doc/4thEdition/ODB-4thEdition-GlobalReport.pdf 309 See Latvian or Polish progress Report 2015-2017 on the implementation of European Commission recommendations on the digitisation and online accessibility of cultural material and digital preservation, 2017, Unpublished documents 310 See Country Factsheet on Estonia

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consequence have altered their strategies. Although initiatives already existed e.g. concerning machine readable data or linked data, these have become more structured and aligned even at the European level311.As the data is scattered, the answer to the question on the relevance of the provisions concerning cultural institutions can only be prudent at this stage. These provisions were undoubtedly relevant when adopted and seem still relevant today. However, due to the early phase of implementation of the Directive, further analysis of this aspect will be needed in the future to confirm these findings. Coherence From the perspective of the extension of the PSI Directive to cultural data, the discussion with the stakeholders concerned mainly the coherence of the new provisions with the national and European copyright and IPR frameworks and with the Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works312. As previously mentioned, the mapping of the 28 national copyright regimes resulted in a very high number of work flows, which proves the complexity of the topic for both the legislators and the subjects of legislation. The legal data collection and consequent legal analysis will provide precise insights on how the PSI Directive interacts with these other regimes at the national and European level. When it comes to the coherence with the Directive on orphan works, available input suggests that stakeholders see the latter as too complicated and inconsistent with the objectives of the PSI Directive in the area of cultural data. Indeed, the Directive on orphan work foresees that “diligent search” is performed to clear the information/data on a certain art piece for re-use. However, this diligent search is interpreted differently in the different Member States and this might result in uneven open up and re-use of similar cultural data313. “For example, differences in underlying copyright law like a presumption of authorship and transfers of ownership creates differences between member states. Also, only the UK has published an exhaustive list of sources to be checked. All other member states have indicative lists. This creates an uncertainty whether all sources are checked for a diligent search314.” Furthermore, it must also be noted that more than one third (36%) of the sources which cultural institutions need to check to clear orphan work are not freely accessible to all of them (they either need a login, payment or are only available on the physical site of the institutions) 315 . These differences in national requirements and accessibility of datasets can lower the legal certainty as to what constitutes a valid diligent

311 See Country Factsheet on the Netherlands 312 See : Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:299:0005:0012:EN:PDF 313 See : The trainwreck that is the Orphan Works Directive, 14 July 2017, Maarten Zeinstra, Kennisland, https://www.kl.nl/opinie/trainwreck-orphan-works-directive/ 314 See : The trainwreck that is the Orphan Works Directive, 14 July 2017, Maarten Zeinstra, Kennisland, https://www.kl.nl/opinie/trainwreck-orphan-works-directive/ 315 See : The trainwreck that is the Orphan Works Directive, 14 July 2017, Maarten Zeinstra, Kennisland, https://www.kl.nl/opinie/trainwreck-orphan-works-directive/

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search 316 and might also, as a consequence, hamper the effective and uniform implementation of the PSI Directive in the different Member States317. Moreover, some stakeholders argued that, for the Directive to be fully effective, “there should be a mechanism allowing the re-use material for which authorship is not 100% certain”318. In fact, as suggested by a recent article, the orphan work Directive has failed to offer to cultural heritage institutions a legal mechanism facilitating the much-needed digital access to Europe’s cultural heritage319 and this impacts the overall coherence of the Directive on orphan work with the PSI Directive. Finally, the third aspect to consider in terms of overall coherence regards the alignment of the provisions of the PSI Directive on cultural data with the international commitments taken by the EU and its Member States. In particular, in this domain UNESCO established a number of recommendations concerning the preservation of, and access to, documentary heritage including in digital form320. Recommendations 3.1 put forward that: “Member States are encouraged to provide appropriate legislative frameworks for memory institutions and ensure their necessary independence in preserving and providing access to documentary heritage, so as to sustain public trust in the scope of material selected, and the way in which it is preserved”321.Furthermore, recommendations 3.2 establishes that “member States are urged to promote and facilitate maximum inclusive access to, and use of, documentary heritage by empowering memory institutions to provide accurate and up-to-date catalogues and finding aids, equitable person-to-person access services to the original documents, if necessary for research, Internet and web-based publications and portals, electronic and digitized content, using international best practice standards. Member States are further encouraged to support memory institutions in the development of international standards for access and use, using recognized standards that support interoperability. Whenever possible, content should be structured, machine-readable and linkable” 322 . The following recommendations also concern the possible channels for granting access to digital cultural

316 See : The trainwreck that is the Orphan Works Directive, 14 July 2017, Maarten Zeinstra, Kennisland, https://www.kl.nl/opinie/trainwreck-orphan-works-directive/ 317 See: A Rights Roadmap for a Multilingual Digital Single Market, Life after the PSI Directive, Riga Summit 2015, http://www.rigasummit2015.eu/sites/rigasummit2015.eu/files/cef_29_04_2015_prodromos_tsiavos_a_rights _roadmap_for_the_multilingual_digital_single_market.pdf 318 See : Katarzyna Rybicka, Helena Rymar and Alek Tarkowski, Ponowne wykorzystywanie informacji publicznej, Nowe wyzwanie dla instytucji kultury, 2016, https://www.gov.pl/cyfryzacja/udostepniamy- podrecznik-ponowne-wykorzystywanie-informacji-sektora-publicznego 319 See : The trainwreck that is the Orphan Works Directive, 14 July 2017, Maarten Zeinstra, Kennisland, https://www.kl.nl/opinie/trainwreck-orphan-works-directive/ 320 Recommendation concerning the preservation of, and access to, documentary heritage including in digital form, UNESCO, 2015, http://portal.unesco.org/en/ev.php- URL_ID=49358&URL_DO=DO_TOPIC&URL_SECTION=201.html 321 Recommendation 3.1 concerning the preservation of, and access to, documentary heritage including in digital form, UNESCO, 2015, http://portal.unesco.org/en/ev.php- URL_ID=49358&URL_DO=DO_TOPIC&URL_SECTION=201.html 322 Recommendation 3.2 concerning the preservation of, and access to, documentary heritage including in digital form, UNESCO, 2015, http://portal.unesco.org/en/ev.php- URL_ID=49358&URL_DO=DO_TOPIC&URL_SECTION=201.html

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heritage and the limitations to re-use. With respect to all these recommendations, the PSI Directive provisions are very coherent as they pursue objectives which are totally in line with those of UNESCO and go even further in promoting accessibility and re-use of cultural information. To conclude, although there seems to be at this stage a high level of coherence of the PSI Directive with the international framework of reference, the coherence with the national and European levels must be further investigated and some preliminary challenges can already be identified with regards to the copyright framework and the Directive on orphan work. EU added value Based also on the assessment of the PSI Directive scope’s effectiveness and relevance, from the analysis of the EU added value emerges a rather mixed picture. Indeed, from a theoretical perspective, if one looks at needs of the main stakeholders (re-users and cultural institutions), it seems logical that action at the national level cannot effectively fulfil their expectations to the same extent as EU wide action. This is due primarily to the nature of needs and aspirations of these players which relate to a) the exigence for a level playing field concerning accessibility and re-usability of cultural data at the EU level as to enable and foster cross-border services and equal access to data and b) a clear and stable legal framework for making data re-usable which transcends national boundaries. In both these domains, EU level action is more relevant and effective than national initiatives as these would require a very high level of coordination to get to the same results. Nonetheless, although on paper there is a clear rationale for EU action more than national intervention, in practice some stakeholders seem to have some reservations concerning the EU added value of the PSI Directive. For instance, the Network of European Museum Organisation (NEMO) gave relatively negative answers to the question of whether the PSI Directive had an EU added value323. This rating for the criterion was justified based on the fact that “the PSI Directive has only been used/put in practices in a very limited number of occasion”324 which relates back to the assessment of the effectiveness. Similarly, an interviewee argued that, as the Directive built on an already existing trend towards cultural heritage digitalisation and improvements in terms of data accessibility, the added value of this text remained more limited than originally wished, especially considering that the biggest obstacles in terms of copyright regimes and financing of digitalisation are to be addressed at the national level mainly or in the framework of other EU initiatives (e.g. Digitisation of Cultural Heritage of reform of the IPR Framework). Therefore, based on the data available at this stage, one could argue that the potential EU added value of the PSI Directive in terms of extension of the scope to cultural data has not been entirely translated

323 See : http://www.ne-mo.org/news/article/nc/1/nemo/nemo-responds-to-eu-psi-directive/376.html 324 See : NEMO answer to the public consultation, 2017, http://www.nemo.org/news/article/nc/1/nemo/nemo-responds-to-eu-psi-directive/376.html

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on the ground due to a number of obstacles which could not be entirely and directly addressed by the Directive.

4.3.2 Changes to the charging provisions

The change in the provisions concerning charging for the re-use of public sector information have been considered one of (if not) the most significant modification brought to the Directive in 2013 and the most difficult to negotiate325. Article 6 of the revised PSI Directive establishes in fact, for the first time, that “when charges are made for the re-use of documents, these shall be limited to the marginal costs incurred for their reproduction, provision and dissemination”326. As mentioned by an article published after the adoption of the reviewed Directive “marginal costing is an important principle, as in the case of digital material it would normally mean no charges apply”327. However, a number of exceptions to this general rule are contemplated in the PSI Directive:  for public sector bodies who are required to generate revenue to cover substantial part of their costs;  for documents for which the public body concerned is required to generate sufficient revenue to cover a substantial part of the costs related to their collection, production, reproduction and dissemination;  for cultural institutions who can have as upper limit for charging the costs of collection, production, preservation and rights clearance, reproduction and dissemination, together with a reasonable return on investment. Within the framework of the first two cases mentioned above, there is a requirement for national authorities to lay down objective, transparent and verifiable criteria to guide public sector bodies in their definition of the charges. Moreover, charges shall be calculated in accordance with the accounting principles of the public sector bodies concerned. Regarding cultural institutions, “the EU legislator indicates that “the prices charged by the private sector for the re•use of identical or similar documents could be considered when calculating a reasonable return on investment”328. This means that the

325 Stategic interview 326 Article 7, Directive 2013/37/EU of the European Parliament and the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information, see: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:175:0001:0008:EN:PDF 327 See : The new PSI Directive – as good as it seems?, 19 April 2013, Ton Zijlstra and Katleen Janssen, Open Knowledge International Blog, https://blog.okfn.org/2013/04/19/the-new-psi-directive-as-good-as-it-seems/ 328 “The 2015 Regulations do not define a reasonable return on investment (ROI) and the rate of return on capital employed in service provision to be applied will depend on whether that service provision competes with private sector provision of similar services. Normally the standard cost of capital, currently 3.5% in real terms, will apply. However, in cases where provision competes with private sector provision of similar services, the rate should be in line with the rates achieved by comparable businesses facing a similar level of risk”. See: Page 15, Implementation Guidance for the Public Sector, The National Archives, 2015, http://www.nationalarchives.gov.uk/documents/information-management/psi-implementation-guidance- public-sector-bodies.pdf

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Directive allows cultural institutions to make profit by supplying and allowing re•use of their resources”329. Nonetheless, for all exceptions there is an upper limit of charging to be respected. “In the case of the mentioned exceptions, charges and criteria applied need to be pre- established and published, with the calculation used being made transparent on request (as was the general rule before)”330. This might require additional efforts for public sector bodies which need to openly and publicly explain and justify their charging systems and the underlying calculations. All these modifications to the existing provisions were driven by the objective of lowering barriers for re-users of data (and especially start-ups, SMEs and citizens who might be more sensitive to costs) and increasing the exploitation of public sector information overall. The expected impact and benefits of these provisions consisted in fact in the increase in the number of applications and services (also cross-border) developed starting from public sector information and in the greater exploitation of the economic benefits of the information (lowering the costs should be compensated by an increased number of re-users and therefore an increased revenue). Furthermore, charging at the marginal costs would also help achieving more non-discriminatory access to data and level diverse and diverging charging practices at the Member States level. With all these expected results in mind, the next sections examine the effectiveness, efficiency, relevance, coherence and EU added value of these modified provisions of the Directive based on the very limited data (mainly from desk research and strategic interviews) available at this stage of the project. Effectiveness Before discussing the effectiveness of the new charging provisions of the PSI Directive it must be recalled here that the transposition of the Directive is very recent and, according to some interviewees, cannot have already produced any concrete effect on stakeholders’ behaviours331. To this element advocating for caution in the analysis of the effectiveness of these provisions, one should add another consideration: as also mentioned during the Member States PSI Expert Group, not all EU countries have already established the objective, transparent and verifiable criteria which are needed for the definition of charges in case of public sector bodies which are required to generate revenue or documents for which revenue should be generated332. For instance, Croatia and Lithuania have not yet adopted such measures which are under elaboration333 while in a number of other Member States these rules have only been adopted very recently. Therefore, the assessment of the effectiveness of the charging provisions at this stage can only be partial.

329 See : See: Policy paper #8 on the re-use of public sector information in cultural heritage institutions, November 2014, https://www.communia-association.org/policy-papers/the-re-use-of-public-sector- information-in-cultural-heritage-institutions/ 330 See : The new PSI Directive – as good as it seems?, 19 April 2013, Ton Zijlstra and Katleen Janssen, Open Knowledge International Blog, https://blog.okfn.org/2013/04/19/the-new-psi-directive-as-good-as-it-seems/ 331 Strategic interviews 332 See also Section 4.1 on the Legal Analysis of the Directive 333 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document

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That being said, some anecdotal evidence and data on this criterion can be provided together with a number of insights gathered through the public consultation and the fieldwork in the Member States. One should start by saying that a majority of respondents to the public consultation believe that PSI has become more affordable thanks to the Directive: in total 54% of replies are positive in this respect (19% of strongly agree and 35% of slightly agree). This positive view on the effect of the Directive should be understood in the context of the evolution of charging practices in the past 10 years. As argued by the Study on Pricing of Public Sector Information, “a trend towards lowering charges and facilitating re-use of data” could already be identified back in 2011334 well before the new charging provisions were adopted and implemented. It was also found back then that only a minority of public sector bodies was charging higher costs than the marginal costs. Moreover, even in the cases in which public sector bodies was charging higher costs for data, this revenue constituted only an extremely small component of the overall budget of the authority (less than 1% of the budget in half of the cases)335. Data from prior analysis also confirm that the charging for the re-use of data concerned and still concerns a rather limited number of public sector bodies in each country and applies more frequently to very specific data-sets such as geo-spatial data (see also section on coherence and especially the relation with the INSPIRE Directive), meteorological data and data from business registers. The reason why these data were more frequently charged for is twofold: on the one hand these data are more costly to produce, maintain and disseminate for public authorities and on the other they have more value for re-users and therefore there is higher willingness to pay for them. In the past, the combination of these two factors led these bodies to develop revenue generated funding models which still holds today in some cases. For instance, the Slovenian agency of registers generates more than half of its budget through charging models and still benefits today from an exception from the PSI Directive336. In Germany, statistics on the number of requests for data and the number of requests charged for suggest that charging concerns around the 10-11% of the total337. This figure is stable since 2012.

Table 11 - Number of requests charged for in Germany (2012-2016)

Year # requests # requests Charge Charge Charge charged for <50 Euro 50-100 Euro >100 Euro

334 16 out of the 21 case studies analysed. See: Study on the Pricing of Public Sector Information – POPSI Study, October 2011, Deloitte, https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information- study-popsis-models-supply-and-charging-public-sector 335 See: Study on the Pricing of Public Sector Information – POPSI Study, October 2011, Deloitte, https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information-study-popsis-models- supply-and-charging-public-sector 336 According to the Slovenian Access to Public Information Act (APIA) Official Gazette RS, NO. 51/2006 public bodies may charge a price for the re-use of the data if it generates revenue to cover at least 30% of its costs associated with the performance of its public task (Art 34a). See Country Factsheet on Slovenia. 337 See Country Factsheet on Germany

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2012 6077 630 187 152 286

2013 4736 743 273 155 315

2014 8673 800 309 233 258

2015 9376 1477 343 802 326

2016 8855 1043 371 277 395

Source: Deloitte 2018 It is also worth mentioning that in some cases, charging does not apply to the data-sets themselves but to the added value services built on top: e.g. in Poland, the statistical office does not charge for standard statistics but rather for tailor-made, analytical reports and the provision of non-standard datasets338. Finally, in some Member States, charging applies mostly to dynamic and real-time data rather than static datasets339. The evidence from prior to 2013 then suggests that the analysis of the effectiveness should focus on those bodies that were charging before the 2013 modifications of the Directive were implemented and/or are still charging due to the exceptions foreseen in the text. The assessment should indeed established, for the effectiveness criterion, if the behaviour of these bodies changed because of the new charging provision and if yes, which were the effects. The idea that the new charging provisions concern a limited number of public body only was corroborated by the data emerging from the discussion with the Member States. For instance, in the United Kingdom, currently less than 10 public bodies charge for re-use of data340 which is of course a very small proportion of the number of the bodies falling in the scope of the PSI Directive341. Similarly, in Hungary, mainly geospatial and meteorological data come at a costs (2 bodies charging)342 while the others are provided for free. In Slovakia, where national rules on charging have already been adopted, it was reported that most authorities implement the zero cost or marginal cost rules and that the implementation did not bring any particular challenge to these bodies343. In the Netherlands, only three public sector bodies are still required to generate revenue out of their data344. Similarly, by law, in France, only three public bodies still have the right of charging for re-use

338 See Country Factsheet of Poland 339 See Country Factsheet on Sweden 340 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 341 Page 15, Implementation Guidance for the Public Sector, The National Archives, 2015, http://www.nationalarchives.gov.uk/documents/information-management/psi-implementation-guidance- public-sector-bodies.pdf 342 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 343 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 344 See Country Factsheet on the Netherlands.

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according to the newly established Loi Le Maire345 and the related decrees346 . All other public bodies now have to and release their data for free. Therefore, the principle of marginal cost does not exist anymore in the French law347. Insights from all other EU countries also confirm that the number of PSBs charging is limited and that the vast majority of data is provided for free. Therefore, the changes in the charging provision impacted a small number of players at the national level in terms of public authorities as most of them already provided data for free or close to the marginal costs. To be effective, these new charging measures should be examined against their consequences for the public sector bodies which were not already providing data for free or at a marginal costs in terms of a) increased re-use of their data (increased number of users and queries) and b) harmonisation of charging practices. Insights from the interviews in the different Member States suggest that increased re-use and revenue from the data are difficult to establish and that harmonisation of charging practices is not yet completed. In terms of number of data re-users and data requests, figures have been growing steadily in Europe since 2011. Although it is difficult to link this increase to the changes in the charging provisions only, the users’ estimates can provide some indications on whether the trend is overall positive and whether barriers for re-users (including price of data) have been lowered by the Directive. In Germany for instance, requests for data based on the Environmental Information Act increased from to around 6000 in 2012 to around 9000 in 2016 (+33% in 4 years)348. Requests for access in total reached around 18,000 at the end of 2017349. In France, re-users of the national open data portal were more than 23.500 in 2017 compared to less than 20.000 two years ago350. The most impressive data on increase of re- users and queries come from Estonia351:

 256,000 re-users in 2017  Queries have risen by about 40% between 2014 and 2016 by both other public bodies and private re-users (mainly companies)

345 The bodies that can still charge are the Institut national de l'information géographique et forestière (IGN), Météo France, and Service hydrographique et océanographique de la marine (SHOM) but only on specific categories of information. See Country Factsheet on France and Loi pour une République numérique, 7 Octobre 2016, 346 See https://www.economie.gouv.fr/republique-numerique 347 See Country Factsheet on France 348 See Country Factsheet on Germany 349 See Country Factsheet on Germany 350 See Country Factsheet on France 351 See Country Factsheet on Estonia

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Aggregated statistics at the European level also show these positive trends352 and confirm that appetite for data is growing, especially when data are provided for free. Swedish stakeholders even provided examples of cases in which a reduction in the costs directly led to an increase in the number of re-users353. For instance, one interviewee stated that municipalities in Sweden were previously not able to afford traffic data held by a public sector organization which was charging for them. Once this PSB provided access free of charge, most municipalities started using them and planning of school transportation could be improved (with obvious societal benefits)354. Across all areas of interest, interviewees appeared to be optimistic that reducing the cost of data for re-users will result in innovations and new services that we cannot think of today – with benefits for society exceeding the institutions’ interest in revenue for PSI. Concerning the link between price of data and number of re-users, literature strongly suggested that that the change to the Directive had the potential to benefit a high number of re-users and in particular for start-ups and SMEs. As indicated by the POPSIS Study already back in 2011, “in cases where the public authority moves to zero or marginal costs charging, the number of re-users increases by between 1,000% and 10,000%.355” The work of the Open Data Institute reached similar findings. Indeed, as shown in the picture below, “the ODI research found that a shift from a cost-recovery to an open-access regime is likely to more than double the value of re-use of Open Data, adding around 0.5% to the GDP. The same research also stresses that ‘free-but-restricted’ data licenses creates more value than paid access but less value than Open Data. The transaction costs of processing the license and the restricted uses to which the data can be put reduce the value that is created”356.

352 See also the Sections on the general evaluation of the Directive 353 See Country Factsheet on Sweden 354 See Country Factsheet on Sweden 355 See: Study on the Pricing of Public Sector Information – POPSI Study, October 2011, Deloitte, https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information-study-popsis-models- supply-and-charging-public-sector 356 European Data Portal, Analytical report number 9, The Economic Value of Open Data, 2017, https://www.europeandataportal.eu/sites/default/files/analytical_report_n9_economic_benefits_of_open_da ta.pdf

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Figure 23 - Demand for Core Data Assets under different pricing regimes

Source: Open Data Institute (2016), Permission granted: The economic value of data assets under alternative policy regimes. A Lateral Economics report for the Open Data Institute, see: https://theodi.org/research- economic-value-open-paid-data Moreover, as discussed in the paper from Heli Koski of 2011, “empirical findings show that the PSI pricing scheme does matter for firms’ growth particularly from the perspective of small and medium size enterprises”357. Indeed, “firms functioning in countries where public sector agencies provide fundamental (geographical) information either for free or at a marginal costs have grown, on average, 15% more per annum than firms than the firms in the countries in which geographical information is priced according to the cost recovery principle”358. Furthermore, this study suggested that positive growth can already be seen one yare after switching to the marginal costs approach to charging359. Finally, in studies were specific data were analysed (e.g. meteorological and hydrographical data), it emerged that there is high price elasticity in these domains, that is to say that re-users are very sensitive and reactive to price360. Therefore, according to the available literature, the impact of the new charging provisions on re-user should already be visible, at least in those countries where national costs rules were adopted in 2016.

357 See : « Does Marginal Cost Pricing of Public Sector Information Spur Firms Growth ? », Heli Koski, The Research Institute of the Finnish Economy, 2011, https://www.etla.fi/wp- content/uploads/2012/09/dp1260.pdf 358 See : « Does Marginal Cost Pricing of Public Sector Information Spur Firms Growth ? », Heli Koski, The Research Institute of the Finnish Economy, 2011, https://www.etla.fi/wp- content/uploads/2012/09/dp1260.pdf 359 See : « Does Marginal Cost Pricing of Public Sector Information Spur Firms Growth ? », Heli Koski, The Research Institute of the Finnish Economy, 2011, https://www.etla.fi/wp- content/uploads/2012/09/dp1260.pdf 360 See case studies on the Norwegian METNO case (meteorological data) and case study on the Dutch KNMI case (meteorological data), Study on the Pricing of Public Sector Information – POPSI Study, October 2011, Deloitte, https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information-study-popsis- models-supply-and-charging-public-sector

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Despite this positive theoretical assessment, as mentioned in the country factsheet on Ireland, some interviewees questioned the link between price of data and number of re- users based on their charging experience. Indeed, their PSBs used to offer data at marginal cost plus Return of Investments (ROI) prior the PSI Directive 2013 modifications and are now offering them for free. Interestingly, this move has not changed the number of re-users of these data substantially. This seems to indicate that the pricing scheme is not necessarily a major barrier for re-use at least in Ireland. However, other interviewees in this country expressed different opinions and suggested that the link between price of data and number of re-users depends on the data domains: some PSBs offering very specialised data (e.g. geological data) did not notice any change in user numbers when they offered their data for free instead of charging for them simply because the audience for these data is by its very nature limited. Other interviewees felt that opening up data free of charge has significantly increased re-use of it. This was particularly true for data that was easy to access and easy to understand such as information on sights in a tourist region361. Moreover, a confirmation on the importance of price as access barrier to data for re-users came from the interviews and stakeholders workshops. As one of the participant to the High-level round-table discussion on Public Sector Information re-use under the PSI Directive put it, price of data and costs differences are major barriers for SMEs and start-ups in Europe. This leads to the need of examining to what extent charging practices have already been harmonised thanks to the Directive. Concerning the harmonization of charging practices, the objectives of the Directive seem far from being achieved. This is shown by the data gathered in the different Member States and through discussions with re-users. The table below presents the cost of the same datasets (AIS Marine Traffic and Charts for navigation) in a number of European and non-European countries.

Table 12 - Overview of AIS Marine Traffic prices in Europe

Country License cost/user Annual cost/update cost France 35% (lowest 31,61€) 2745 €/ 0€ Norway 40% 1950 €/ 0€ Italy 15% 18900€/ included in annual fees Belgium 0.43€ 0€/0€ United Kingdom (except 3,39£ 0€/0€ Northern Ireland) Ireland and Northern Ireland 3,39£ 0€/0€ Iceland 5€ 0€/0€

361 See Country Factsheet on Ireland

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Netherlands 2,53€ 0€/0€ Germany 3,9€ 0€/0€ Poland 15% 0€/0€ Latvia 30% 0€/0€ Estonia 30% 0€/0€ Denmark 40% 470€/1350€ Finland 30% 0€/0€ Sweden 25-35% 4500€ or 9000€/included in annual fee Greece 45% 10000€/0€ Croatia 8,44€ 0€/0€ Lithuania 50% 0€/0€ Portugal 30% 0€/1065€ per update Spain 5€ 0€/0€ Source: SeaPilot 2017, tabulation by Deloitte As the table suggests, even taking into account the purchasing power of the different Member States and the fact that marginal costs may vary due to that, differences between prices for the same datasets are striking. Annual costs in particular vary considerably, ranging from 0€ to 189000€. Significant differences in the price of geo-spatial data were also emphasized by re-users coming from different countries362. For instance, in Germany these data are being provided for free since 2011 but this is not the case in Hungary and in many other EU countries363. These examples as well as the qualitative information gathered through interviews suggest that Member States still have very different charging practices. This is further corroborated by the fact that even within the same country significant differences might apply364. It was mentioned to be an issue in Slovenia for instance but it is relevant also in the case of other Member States. The table below presents the minimum and maximum charging thresholds for different PSBs (also regional and local authorities) in Germany.

Table 13 - Charging thresholds for PSBs in Germany

Institution/area Charging from ...... to a maximum of

IFG 0 EUR 500 EUR

362 See Country Factsheet on Sweden and the Netherlands 363 See Country Factsheet on Germany 364 See Country Factsheet on Slovenia

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UIG (environment) 0 EUR 500 EUR

VIG (consumer protection 0 EUR (no charging)

Baden-Württemberg 0 EUR No limit

Berlin 5 EUR 500 EUR

Brandenburg 0 EUR 1000 EUR

Bremen 0 EUR 500 EUR

Hamburg 0 EUR 500 EUR

Mecklenburg-Vorpommern 0 EUR 500 EUR

Nordrhein-Westfalen 0 EUR 1000 EUR

Rhineland-Pfalz 0 EUR 700 EUR

Saarland 0 EUR 500 EUR

Sachsen-Anhalt 0 EUR 2000 EUR

Schleswig-Holstein 0 EUR 500 EUR

Thüringen 0 EUR Charging according to effort.

Source: Deloitte 2018 Finally, it was mentioned that the price for the same datasets in some occasions varied according to the re-users and technologies concerned. In Sweden, one re-user asked (thanks to the national rules on access to information) for being informed about to the price its competitors were paying for the same dataset and discovered that the public sector bodies was applying different charges to different re-users based on non-transparent criteria and/or on the technological solution adopted by the re-users to get the data365. To this non- harmonious situation on charging, one should add the fact that the proper calculation of marginal costs is not clear to many institutions. In practice results in more data being provided at no charge366. Therefore, the Directive has not yet led to an effective harmonisation of the charging practices. However, as mentioned in the beginning, it is too early to assess the full impact of the new charging provisions and nothing indicates that harmonisation might not happen in the future once all countries have completely integrated the new charging rules. Moreover, the data showed that the Directive had an effect in increasing the overall number of users

365 See minutes of the High Level Round Table discussion on Public Sector Information re-use under the PSI Directive 366 See Country Factsheet on the Netherlands

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and decreasing prices. Indeed, as also mentioned in a number of interviews, charging at the marginal costs is sometimes so complicated that PSBs prefer providing data for free instead367. Therefore, the assessment of the effects of the charging provisions with respect to this evaluation criterion is overall positive, although there are some criticisms and it is important to continue monitoring the Directive in order to identify the impact on a longer term. Efficiency “Financing appears to be a main obstacle to change368”. As one of the interviewee also put it, “at the end of the day the question of charging is all about finding budget at the Member States level to replace the loss of revenue related to charging at zero or marginal costs”369. The consensus on the benefits being higher than the costs in case of charging at the marginal costs came from the discussions held during the negotiation of these changes in the PSI Directive370 and was also confirmed by the outcome of more recent experiences. In France for instance, the moving to a zero-charging model for the data held by the National Geographic Institute brought to increasing by 20 times the volume of data downloaded and to generate around 114 million euro of benefits for the public, against a costs for the PSB of around 6 million euro371. As a result none of the stakeholders contacted doubted the benefits deriving from providing data for free or charging at the marginal costs and especially in terms of increase in the number of re-users and full exploitation of the data potential. Therefore, one should start by saying that the charging provisions of the Directive are already efficient and that there is a consensus amongst stakeholders on this point. Nonetheless, as recent study argued, “the recent push towards identifying the types of value generated by open data (economic, political etc.) must also acknowledge costs. These costs, both direct and indirect, are generated from the process of open data provision”372. The section on efficiency of the overall evaluation of the Directive details these costs and provide some estimates for their magnitude (see Section 4.1).

367 See Country Factsheets on Germany and the Netherlands 368 See : European Public Sector Information Platform Topic Report No. 2012 / 9, Charging for PSI re-use a snap shot of the state of affairs in Europe, Marc de Vries, https://www.europeandataportal.eu/sites/default/files/2012_charging_for_psi_re_use.pdf 369 Strategic interviews 370 See : European Public Sector Information Platform Topic Report No. 2012 / 9, Charging for PSI re-use a snap shot of the state of affairs in Europe, Marc de Vries, https://www.europeandataportal.eu/sites/default/files/2012_charging_for_psi_re_use.pdf 371 See Rapport au Premier Ministres, Ouverture des données publiques, Les exceptions au principe de gratuité sont-elles toutes légitimes ? Mohammed Adnène TROJETTE, Avec le concours de Rémy LOMBARD, 2013, http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/134000739.pdf 372 See: The cost of Geospatial Open Data, Peter A. Johnson, Renee Sieber, Teresa Scassa, Monica Stephens, Pamela Robinson, Transaction in GIS, Wiley, January 2017, http://onlinelibrary.wiley.com/doi/10.1111/tgis.12283/full

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From the perspective of charging, to the direct and indirect costs (which are also acknowledged by the Directive and the European Commission Guidelines)373, must be added the opportunity costs and the loss of revenue for the public sector. As also mentioned by the Hungarian PSI Expert, reducing charges to the marginal costs or below is beneficial but of course it comes at a price for the Member States374. In certain cases, revenue generated through charging for data constitutes a more than significant share of the PSBs’ budget (e.g. more than 40% in case of an Estonian agency and 98% for the French National Library – See section on cultural data). In Hungary, it was calculated that the revenue from geo-spatial data was of around 5 million euro per year while for meteorological data was of 1.3 million euro375. The government is now entering in a political discussion on how/whether to replace this revenue generating model with public funding and where to find these resources. A similar discussion is taking place in Belgium. Indeed, it was established that only two re-users of the full business registers exist, each of them paying 75.000 euro per year to get access to the entire dataset (therefore bringing the overall data revenue of the organisation to 150.000 Euro per year)376. Data from Germany and the Netherlands also indicates that most often revenue is in the order of several thousand or ten thousand Euro per year (e.g. in between 50.000 and 80.000 for a Dutch national archive)377.

Highlights from the French experience As also underlined in the French Report on the opening of public data in France of 2013378, despite some mapping efforts, the knowledge on the revenue generated through data is sub-optimal, with figures that change radically (+/- 150%) according to different sources. In total, it was established that the revenue for the French public administration was of around 35 million € in 2012. The report also underlined that the revenue is concentrated in a limited number of PSBs (27 in total) and is split as follows:  10 million € for the French Statistical Office (INSEE)  10 million € for the National Geographic Institute (IGN)  Concerning the remaining 15 million €, 14 players contribute to around 5% of the total (1,75 million €) and the rest is divided amongst 11 PSBs It is also very important to underline here that in 2013 the revenue coming from charging was already declining (-33% the two previous years) and that the report makes a clear link

373 3 categories of costs are related to PSI: data production (including collection and maintenance), data distribution and sales and marketing or the provision of added-value services. For the definition of charged, a number of costs are identified as eligible by the European Commission. See: Commission Notice, Guidelines on recommended standard licenses, datasets and charging for the re-use of documents, 2014/C 240/01, https://ec.europa.eu/digital-single-market/en/news/commission-notice-guidelines-recommended-standard- licences-datasets-and-charging-re-use 374 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 375 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 376 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 377 See Country Factsheets on Germany and the Netherlands 378 See Rapport au Premier Ministres, Ouverture des données publiques, Les exceptions au principe de gratuité sont-elles toutes légitimes ? Mohammed Adnène TROJETTE, Avec le concours de Rémy LOMBARD, 2013, http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/134000739.pdf

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between price and access to data, by stating that “charging limits re-use and this barrier has the effect of excluding less resourced re-users”. So far, replacement of this revenue generated budget with public funding happened in a very limited number of cases. In France, the French Statistical Office (INSEE) has been compensated of 10 million euros through its public budget for the loss of revenue due to the release as open data of the business register known as SIRENE379. However, there is no evidence that another public body in this country has been compensated through public budget for the loss of revenue due to open data. In Slovenia, the discussion on replacing revenue from data with public funding only seem to concern the museums and cultural institutions. These bodies advocate indeed for a transition phase in which other funding mechanisms are identified in order to replace the data revenue stream380. In Germany, the DWD (German Weather Service) exploited originally the exceptions of the Directive to continue charging but it now offers its data free of charge (since 2016). The institution is compensated by tax-funded financing. Therefore, as mentioned above, it is commonly agreed that it would be more efficient to open up datasets for free or at a marginal cost instead. However, this depends on the political willingness to mobilise funding and replace the revenue generated budget which can amount from a few thousands to a few millions of Euros, depending on the data and PSBs concerned. Moreover, it must also be considered here that, if costs are pending upon one governmental player only (the authority in charge of the dataset), benefits are spread across the entire government and society, which makes negotiation on funding more difficult381. The principle that there would be more revenue overall through taxes with the release of open data has still to be evidenced and translated into national budgets for data producers. The issue is that one organization or department within an organization does not look at revenue overall, but its own revenues from public subsidies and/or generated from the selling of data. However, at least in France, most of the public bodies, including para- public bodies such as IGN France or ENEDIS, recognize the positive impact of releasing open data for the public, with regards to their mission statement382. To conclude, one can argue that there is a stakeholder’s consensus (both from the re-users and from public sector bodies) on the fact that charging at the marginal costs or below is efficient when looking at the balance between the overall benefits for the society and the related costs. Nonetheless, a political decision is needed in order to replace the revenue generated funding with other public funding. This is one of the main barriers that PSBs face when implementing the new charging provisions of the PSI Directive.

379 See Country Factsheet on France 380 See Country Factsheet on Slovenia 381 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 382 See Country Factsheet on France

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Relevance As the data suggests, the changes in the charging provisions were relevant at the moment of the adoption of the reviewed Directive. Indeed, at the time it was found that: a) there was a correlation between price of data and amount of re-users and growth of these383, b) there was already a trend towards lowering charges to foster re-use384 and c) certain public authorities needed to be exempted from the marginal costs rule due to specific conditions and situations385. For the current evaluation, the question is whether the changes are still relevant in today’s context and whether the exceptions to the marginal costs principle are relevant these days. In addition to this, the study shall assess whether new needs concerning charging emerged since the last review of the Directive. To answer to the abovementioned questions, the three contextual factors mentioned above should be carefully re-assessed. Concerning the correlation between price of data and amount of re-use, no recent publication challenged or put under discussion the principle that to lower charges correspond higher number of re-users. On the opposite, recent analysis and the data gathered for this study suggest that the demand for free open data is increasing over time, that prices are coming down386 and that further efforts should be made to increase availability of free datasets as to exploit societal and economic benefits to the largest extent387. Moreover, there is no indication that public sector bodies are deviating from their trend towards lowering charges (also due to the transposition of the Directive of course). On the opposite, as also discussed with the Member States during the PSI expert group, charging at zero or marginal costs is the new norm for the vast majority of public sector bodies. However, as the implementation of the Directive is not complete yet, the charging provision remain relevant to guide the transition for the small percentage of bodies who still need to adapt. Moreover, due to the differences between charging practices amongst PSBs, binding rules are needed to push towards harmonisation of prices and approaches.

383 See : « Does Marginal Cost Pricing of Public Sector Information Spur Firms Growth ? », Heli Koski, The Research Institute of the Finnish Economy, 2011, https://www.etla.fi/wp- content/uploads/2012/09/dp1260.pdf and Study on the Pricing of Public Sector Information – POPSI Study, October 2011, Deloitte, https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information- study-popsis-models-supply-and-charging-public-sector 384 See : Study on the Pricing of Public Sector Information – POPSI Study, October 2011, Deloitte, https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information-study-popsis-models- supply-and-charging-public-sector 385 See : European Public Sector Information Platform Topic Report No. 2012 / 9, Charging for PSI re-use a snap shot of the state of affairs in Europe, Marc de Vries, https://www.europeandataportal.eu/sites/default/files/2012_charging_for_psi_re_use.pdf 386 See : See : Different PSI Access Policies and their impact, Frederika Welle Donker, in “The socio-economic effects of public sector information on Digital Networks: towards a Better Understanding of Different Access and Re-use Policies: Workshop Summary, 2009, https://www.nap.edu/catalog/12687/the-socioeconomic- effects-of-public-sector-information-on-digital-networks 387 See : Open Data Barometer, Global Report, 4th edition, World Wide Web Foundation, 2017, http://opendatabarometer.org/4thedition/report/

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Based on these considerations, it can be argued that the real questions concerning the relevance of the charging provisions relate to whether the exception to the marginal costs rule are still adequate and needed and whether new needs emerged since 2013. In this respect, the interviews at the national level and the surveys with re-users and cultural institutions provided a number of elements to consider. In general, as also shown by the outcome of the public consultation, stakeholders are split over the question of whether the current provisions are still relevant or should be changed. For instance, to the question of whether changes to the current article 6 are needed, around 38% of respondents replied that they believe no changes are required while around 34% supported the opposite position (16,4 % of the respondents being neutral). More specifically, 42% of respondents to the public consultation believe that the exceptions to the article should be abolished (27% are against this idea). To a follow up question, 43% of respondents replied that the exceptions should be more narrowly defined against 21% of respondents disagreeing. Those who believe that the article is good enough and should not be changed generally explain their position on the basis of two main arguments:

 The balance of interests found by the current article. Indeed, the marginal cost rule is driving a decrease of prices but PSBs with special needs (e.g. cultural institutions or public sector bodies who are required to generate revenue to cover substantial part of their costs) enjoy a certain flexibility. Moreover, the current formulation respects the principle of subsidiarity and leaves the Member States in charge of developing national guidelines without imposing a one fits all approach for calculating marginal costs.  The problem of replacement of revenue generated budget with public budget. Stakeholders are concerned about the existence of a political willingness for replacing data generated budget with other public funding. In the absence of such a strong political willingness, PSBs are cautious about changing the article. Some of them advocated for a longer transition period allowing them to find budgetary solutions.  The importance of revenue to pay for digitisation processes and maintenance of sensor systems/infrastructures. Due to the advent of IoT and other systems for real- time collection of data, revenue generated through charging for data should be used to invest in these new technologies and further improve data quality388. On the other hand, there is also a strong support for changing article 6 to be considered and which is justified based on arguments related to its relevance. Indeed, stakeholders pointed out that costs and revenue linked to PSI will tend anyway to disappear in the long run. Indeed, the higher the number of open datasets available, the less justifications to charge for data are expected to be used by institutions or accepted by the public389. This is proven by

388 See Country Factsheet on Sweden 389 See Country Factsheet on Sweden

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the data on the decrease of prices and number of PSBs charging. The mentality of public sector is changing in this respect and establishing new rules forbidding charging could only accelerate this change. Furthermore, some stakeholders mention that further reducing charged could be a way of catching up with other countries (such as the United States) in the domain of data economy. Finally, it is often said that citizens should not pay for data twice: in a digitised environment, the production of good quality digital data falls in the public tasks of PSBs and this is paid by tax payers. The citizens should therefore not be asked to pay for accessing and re-using these data for which they paid already once. To conclude, there is no reason to believe that the current article 6 is not relevant. The question is rather on its relevance in the future considering the trend towards lowering charges and the new citizens’ expectations. This issue is further considered in the section on the Impact Assessment. Coherence Coherence of the changes related to the charging provisions should be assessed both at the European and at the national level. For the national level, the analysis of Chapter 4.1 builds on the legal mapping and on the observation of the national rules on charging established. For the European level on the other hand, one main aspect should be considered: the coherence with the provisions on geo-spatial data services foreseen by the INSPIRE Directive390. According to Roger Longhorn’s presentation at the LAPSI conference in Milan of 2011,”INSPIRE is an ‘information infrastructure’ that encompasses 34 data themes – every one of which is a type of PSI “391. “Theoretically, these two regimes would be perfectly complementary, as INSPIRE and the PSI directive have a different purposes”392: one looks at the re-use of geographical information within the public sector while the other focuses on general re-use of data (by anybody). Both Directives “stipulate a preference for marginal cost pricing regime, however EU Member States are still allowed to use cost-recovery regimes”393. Indeed, article 14 of the INSPIRE Directive establishes the types of services for which public authorities can charge in the framework of establishment and operation of a network of services for the spatial data

390 See: Directive 2007/2/EC of the European Parliament and of the council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32007L0002&from=EN 391 See : The PSI Directive, INSPIRE and MSFD: A Complex Legal Framework for Selected Markets, Roger Longhorn’s presentation, the LAPSI conference, Milan, 2011, http://slideplayer.com/slide/739652/ 392 See : Inspire and the PSI Directive: Public Tasks vs Commercial Activities?, Katleen Janssen Interdisciplinary Centre for Law and ICT (ICRI), K.U.Leuven, Belgium, 2005, https://www.law.kuleuven.be/citip/en/docs/publications/719inspire2f90.pdf 393 See : Different PSI Access Policies and their impact, Frederika Welle Donker, in “The socio-economic effects of public sector information on Digital Networks: towards a Better Understanding of Different Access and Re- use Policies: Workshop Summary, 2009, https://www.nap.edu/catalog/12687/the-socioeconomic-effects-of- public-sector-information-on-digital-networks

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sets394. Discovery services and view services for instance shall be provided for free and moreover “data made available through the view services may be in form of preventing their re-use for commercial purposes”395. Derogations to the principle of the provision for free of view services exist, “to apply charges where such charges secure the maintenance of spatial data sets and corresponding data services, especially in cases involving very large volumes of frequently updated data”396. The question of the coherence between the INSPIRE Directive and the charging provisions of the PSI Directive has been raised by some stakeholders and also by some Member States representatives during the PSI Working Group (e.g. Italy). This topic is very important also in light of the fact that geo-spatial data remain in most cases the most expensive data and those for which Member States still do not recur to the marginal costs rule (see section on effectiveness). As mentioned by the Italian PSI representative, “there needs to be coordination between INSPIRE and open governance policies. We must have an overall approach to the full data and we need then to differentiate between two separate catalogues: one for geo-data and one for non-geo data. For the former we need to respect the Inspire directive and there must be certainty about this. Otherwise we risk duplication of data on the catalogue and possible misalignments between the two”397. This applies in general to the two Directives but also to charging, as mentioned above. EU added value Stakeholders consulted in different ways all agree on the high EU added value of the modifications brought in 2013 to the provisions of charging. The reason for this is that national initiatives alone would have not been able to provide a level-playing field for all possible European re-users and public sector bodies with respect to price of data. Indeed, confronted with diverging practices in terms of charging, the legislator needed to harmonise the situation and establish common rules in order to enable the exploitation of data across border and also foster the establishment of cross-border services. This important cross-border dimension has been in fact mentioned during the data collection as the primary reason and justification for EU level action instead of Member States level initiatives. As one of the interviewee put it “EU level action was needed and expected in terms of harmonisation of charging practices”398. Moreover, according to one analysis of the Directive, “real progress has been made. Member States with a constructive

394 Article 14, Directive 2007/2/EC of the European Parliament and of the council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32007L0002&from=EN 395 Article 14.3, Directive 2007/2/EC of the European Parliament and of the council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur- lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32007L0002&from=EN 396 Directive 2007/2/EC of the European Parliament and of the council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32007L0002&from=EN 397 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 398 Strategic Interview

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approach will feel encouraged to do more. Also, the effort of transparency in charging may dissuade public sector bodies from applying charges”399. However, the same article also argues that “in summary, the new PSI Directive does not seem to take the bold steps the open data movement has been clamouring for over the past five years”400. In terms of harmonisation of charging practices in particular, the sections above suggest that there is marge of improvement. However, one can conclude that the new provisions on charging were not only absolutely needed at the European level but also constituted a step in the right direction.

4.3.3 Changes in the data format provision

In its introduction, the initial Directive 2003 already contained some elements related to digital format and distribution, first in Recital13, where the text mentions that "public sector bodies should make documents available (…) through electronic means where possible and appropriate” and "in a format which, as far as possible and appropriate, is not dependent on the use of specific software". Then further in Recital23, the Directive recommended the use of portal sites with assets lists in order to facilitate the search for documents. The Directive 2003, however, did not contain any obligation regarding format and distribution but only recommendation that documents should be made available "through electronic means where possible and appropriate" (Article 5: Available formats). The Directive, in its 2013 version, introduces a more explicit definition of "electronic means" by adding and defining the terms "machine-readable format", "open format", "formal open standard" and "metadata". Thus, paragraph 1 of Article 5 recommends now that "public sector bodies shall make their documents available in any pre-existing format or language, and, where possible and appropriate, in open and machine-readable format together with their metadata. Both the format and the metadata should, in so far as possible, comply with formal open standards." Those changes related to format and distribution in the Directive 2013 are largely due to the emergence of the Open Data movement between 2003 and 2013 and can be summarized as a partial integration of commonly-accepted technical definition, notably the 8 Open Government Data Principles adopted in 2007401 as well as the broader Open Definition of 2005402, which are still both recognized as the foundation of what Open Data means. Later in 2014, acknowledging that "guidance on the key elements of the recently revised Directive (were) urgently needed (in order to take full advantage of the) opportunities offered by the re-use of public data" the Commission published a Notice 2014/C 240/01 entitled "Guidelines on recommended standard licenses, datasets and charging for the reuse of documents".

399 See : The new PSI Directive – as good as it seems?, 19 April 2013, Ton Zijlstra and Katleen Janssen, Open Knowledge International Blog, https://blog.okfn.org/2013/04/19/the-new-psi-directive-as-good-as-it-seems/ 400 See : The new PSI Directive – as good as it seems?, 19 April 2013, Ton Zijlstra and Katleen Janssen, Open Knowledge International Blog, https://blog.okfn.org/2013/04/19/the-new-psi-directive-as-good-as-it-seems/ 401 https://public.resource.org/8_principles.html 402 opendefinition.org

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With regard to data format, the notice introduces a series of recommendations that should be applied, in particular, to high-value dataset’s categories that are geospatial data, earth observation and environment, transport data, statistics and company data (business register). Those recommendations include examples of machine-readable and open formats (CSV, JSON, XML, RDF,403 etc.) to enhance accessibility, as well as metadata and standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability. The notice also recommends high-value datasets to be accessible both as data dumps (massive outputs of data) as well as through application programming interfaces (APIs) to facilitate automatic processing. Effectiveness Open machine-readable format There is still few statistics available regarding the implementation of open data standards and APIs, making it difficult to assess the past, present and future of the implementation of the Directive in this area. Nevertheless, the situation is getting better regarding availability of information on data formats as all EU28 Member States are now able to provide some statistics through their national open data portals. The European Data Portal, which harvest many of the national datasets and INSPIRE metadata from national catalogues, also proves to be a useful source of information regarding data formats availability across EU.404 There are currently 825 000 datasets available on the European Data Portal, from which 388 543 datasets have at least one data format provided in the metadata. The remaining 437 082 datasets, where we have no information on the data format, are mainly from INSPIRE geo- catalogues. Considering the datasets for which we have information on format, more than 25% are available at least in CSV, an open machine-readable format for tabular data, and 12% are available in JSON, an open machine-readable format for attribute–value data. However, proprietary formats such as TXT or XLS are still commonly used, as well as PDF files (almost 10% of datasets). Geospatial data layers are being made available as downloadable open machine-readable format such as GML or SHP, but also through web services such as WFS.

403 Although it is useful to not that RDF, in comparison with CSV or JSON is not a file format but a metadata model that can be used in file formats such as JSON or XML 404 There is no direct report for statistics on formats. Figures have to be processed to get some aggregated data. In addition, the project OpenDataMonitor.eu, funded through the FP7, was another attempt to monitor data format and licenses from open data catalogues in EU. The project harvested metadata from July to December 2015, but was then stopped. The European Data Portal could, however, integrate reporting tools developed through this project on the portal.

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Figure 24 - Percentage of datasets available in Open Format on the EDP

Percentage of datasets available per data format on the European Data Portal* 30

0 CSV JSON GML WMS SHP WFS XML

Source: European Data Portal, 2017405 Thanks to the metadata on format, it is also possible to have an idea on how many resources are provided in open machine-readable format versus proprietary or unknown format.

Figure 25 - Percentage of resources in open-machine readable, proprietary or unknown data format

Percentage of resources in open machine-readable, proprietary, or unknown data format*

44%

56%

open machine-readable proprietary or unknown

Source: European Data Portal, 2017406

405 Only the most available data formats are shown. Also, please note that only datasets for which at least one data format was provided in the metadata were considered. 406 This is an estimation based on the number of datasets per data format provided on the European Data Portal. Open machine-readable data format includes files format as well as web services or other open protocols to serve data. Proprietary or unknown category includes proprietary machine-readable format, non-

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In-country interviews provide another insight on data formats but also show that the level of monitoring is contrasted. In The Netherlands, respondents have observed that there is progress being made in the formats in which data is being made available. Especially the use of PDF has dropped according to re-users, and there has been an increase in the usage of formats such as XLS, and also the open formats CSV and ODS. In Slovenia, public sector information has successfully been converted into machine-readable and reusable format. According to the interviewees, approximately 80% of the available open data is presented in a machine readable format. Machine-readable format is also becoming the norm for public datasets in France with the majority of datasets available in an open machine-readable format such as JSON, SHP or CSV on data.gouv.fr, and none of them is available in PDF format. In Sweden, Germany, or Poland none of the interviewees were able to provide estimates of the share of datasets that are provided in machine-readable formats, stressing that such statistics are not available. Overall, it seems fair to conclude that the situation is getting better in terms of availability of data in open machine-readable formats, with some countries showing the way. But there are still too many datasets available only in proprietary or non-machine-readable form. Overall, there is also a need to better monitor open machine-readable formats across data catalogues, publisher by publisher, with appropriate reporting tools. APIs The issue of open data interoperability standards and APIs is regularly recognized as one of the main barriers for data-reuse once datasets have been made available online, in particular for high value datasets. This was for instance emphasized in the European Commission public consultation on "Building a European data economy initiative"407 where the summary report noted that "interoperability is a pressing issue for many of the respondents to the online public consultation, and there is a consensus on the need for interoperability standards". Additionally, among those respondent, 68% clearly support an increased use of APIs. The need for more API and interoperability was also expressed in a recent W3C survey with regards to data standardization where respondent indicated their interest in the use of API for data access (89%), compared to direct download (76%).408 With regard to available metrics, some data formats from the European Data Portal refer to web services which can be considered as a type of API and are particularly used to serve geospatial data on the web. In total 42 027 datasets are offered at least through a web service protocol through open data catalogues in EU and many more through INSPIRE data portals.409 The European portal also references 232 datasets as being served through an API.

machine readable, compressed files as well as URLs or web formats such as HTML. Only resources for which at least one data format was provided in the metadata were considered. 407 See: https://ec.europa.eu/digital-single-market/en/news/public-consultation-building-european-data- economy 408 See: W3C study of practices and tooling for Web data standardisation, Dave Raggett, W3C Data Activity Lead, December 2017, https://www.w3.org/2017/12/odi-study/ 409 SPARQL endpoints were also included

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Beyond those statistics, there is currently no specific monitoring of datasets being made available through public APIs by Member States, nor catalogues referencing public APIs for those data. As stressed by the W3C study, there is a need to look at the discoverability of APIs (for instance through the publication of specific metadata in open standards). Data standards and interoperability Although the implementation of data standards is not enough monitored across Member States, some evidence can be found in specific sector. This is the case in the transport sector with the General Transit Feed Specification (GTFS), which defines a common format for public transportation schedules and associated geographic information. According to TransitFeeds410, a service that indexes such feeds, there are currently 103 transport organizations providing data in GTFS or GTFS Realtime format in the European Union. The success of the GTFS open format has been driven by the development of journey planner mobile applications such as CityMapper as well as Google, Apple, Bing or MapQuests mapping services. GTFS is also often used in research on accessibility and urban planning. An equivalent of the GTFS, the standard NetTex, has been developed by the European Committee on Standardization.411 However, there are still very few examples of the implementation of the NeTex standard, raising question on success factors for data standards adoption and the role that the EU Commission should play when a de facto standard is already being used. Guidelines on datasets Lastly, it is to be noted that none of the interviewees,412 either data producer or re-user, mentioned the Notice 2014/C 240/01, published in 2014, as a complement to the Directive, and, when asked, very few were aware of the document. We can discuss the reasons why this document has not been of more help, in particular considering that technical guidance is seek by data publishers. Beyond the questions related to the promotion of the document by the EU Commission and national authorities, several interviewees addressed the need for more documentation, training material and cross-support in the way data should be published and how to tackle specific issue. These are issues that generic guidelines alone cannot address effectively. Efficiency There is still little evidence available regarding the cost of implementing technical recommendations from the Directive or its Guidelines on datasets. However, some studies already provide preliminary insights, in particular for high-value datasets, showing that revenues for the public sector might exceed costs, including technical ones, once passed a period of initial investments.

410 See: https://transitfeeds.com 411 See: http://netex-cen.eu/?page_id=65 412 Based on information collected from interviews in all Member States surveyed

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For instance, it was estimated that the total impact of the Danish Basic Data Programme applied to all Member States would amount to more than €5 billion (net revenues for both public and private sectors) once fully deployed. 413 As a reminder, the Basic Data Programme aims at establishing a system of shared key registers trough the implementation of the "once only" principle. The very high estimated impact for the whole EU is also due to the fact that those key registers are made freely accessible to re-users (open data) in high quality and with the right data formats and means of distribution. However, when trying to look more closely at efficiency gain from data format and APIs, it is difficult to provide an average breakdown of costs as both the existing data infrastructures already in place and the technical choices have an important impact on the final figure.414 Relevance As high value datasets are made available online, the issues of data format, interoperability and distribution are becoming more and more relevant to address. This has been evidenced in several EU public consultations, some cited above, but also in recent communications such as from the Open Data Institute415 and the Open Knowledge416 who are considering that data quality is one of the main issues to tackle in order to progress towards more impact from Open Data. Apart from the PSI Directive and its Guidelines, there are today several other instruments at EU level to consider that may act on data interoperability and APIs specifically:

 The INSPIRE Directive which is providing a framework for data interoperability in the sector of geospatial data;  The European Interoperability Framework, revised in 2017, whose aim is to advance interoperability between digital public services in EU, data exchange being among the core objectives;  The ISA² programme, which supports the development of digital solutions that enable public administrations, businesses and citizens in Europe to benefit from interoperable cross-border and cross-sector public services;  The European Data Economy, focused on B2B, and which among other issues, address interoperability and standards;  The EU eGovernment Action Plan 2016-2020 with openness and interoperability by default as among the key principles that should guide the development of digital governments in the EU;

413 See: European Commission, Study on eGovernment and the Reduction of Administrative Burden, Luxembourg, Publications Office of the European Union, p25, https://ec.europa.eu/digital-single- market/en/news/final-report-study-egovernment-and-reduction-administrative-burden-smart-20120061 414 See: Open Data Institute, Estimating the cost of a government open data initiative, 10 September 2014, https://theodi.org/blog/estimating-the-cost-of-a-government-open-data-initiative 415 See: Open Data Institute, Exploring Open Data Quality, 26 October 2016, https://theodi.org/blog/exploring- open-data-quality 416 See: Open Data Quality, the Next Shift in Open Data, 31 May 2017 https://blog.okfn.org/2017/05/31/open- data-quality-the-next-shift-in-open-data/

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Some sectoral regulatory elements have also been cited such as the ITS Directive on Intelligent Transport System along with the role of the European Committee for Standardization, the public standards organization of the EU, that is working on Public Transport Reference Data Model. Coherence Distribution and interoperability of data on the web has been the concern of many working groups and initiatives in the recent years, notably including the W3C Data on the Web working group, eGov interest group and Government Linked Data (GLD), the Share-PSI Group, or the G8 Open Data Charter which then became the International Open Data Charter. There are also an increasing number of initiatives at sector level such as in transport (NeTex, GTFS). Discussions on data interoperability has also been the topic of discussions at EU and national level through the INSPIRE Directive, which offers a comprehensive standardization framework or within the recent Commission Delegated Regulation on multimodal transport recommending the adoption of common data access point at national level. Lastly, those issues have been also addressed through the adoption of national laws (French Law on Digital Republic) or programmes (Danish Key Register or Estonia X-Road). EU added value The research and interviews carried out for this study indicate that more support to the implementation of the Guidelines from the EU itself and from national PSI organizations might help to improve the situation, but in the same time, they are doubts from stakeholders regarding the capacity to streamline open data standards through a top-down approach and with legal and regulatory tools only. In line with the strategy explained in the section above, further research will be undertaken in this area, in particular for identifying best practices. In addition, in order to be successful, distribution and data standards require supporting tools and processes (data portals, data production and management systems) as well as awareness and competencies from the ecosystem of data producers and re-users. Policy measures addressing those factors should also be considered at EU level.

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5 Quantification of the effects of the PSI Directive

This chapter sets out our approach to quantification. More specifically, the chapter provides:

 A landscaping exercise: An overview of the approaches used in a sample of key existing secondary sources417, as well as an analysis of available secondary studies with regard to their estimates of the economic value of Open Data / PSI;

 An overview of the existing information in relation to the key information needs418; and

 Estimates concerning the evaluation of the PSI Directive 5.1 Landscaping exercise: Existing approaches and estimates This section contains an analysis of both the approaches taken in different secondary sources to estimate the economic value of Open Data / PSI, as well as the available quantitative estimates. The purpose of this landscaping exercise is to show the vast differences between existing approaches and estimates, as well as to locate the outcomes of our own model within this landscape.

5.1.1 Landscape of different approaches to estimates

Numerous sources that cover the data economy in general, the value of open data, issues related to PSI, and other similar topics have been identified. At this stage, the most important secondary sources include:

 European Data Market study (IDC and Open Evidence, 2017);  Creating Value through Open Data study (Capgemini, 2015)419;  Open Data study (McKinsey, 2013)420;  Review of recent studies on PSI re-use by Graham Vickery (2012)421; and

417 As well as an outline of relevant data and estimates. 418 As discussed during the conference call on 06 December 2017 419 See: https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 420 See: https://www.mckinsey.com/~/media/McKinsey/Business Functions/McKinsey Digital/Our Insights/Open data Unlocking innovation and performance with liquid information/MGI_Open_data_FullReport_Oct2013.ashx 421 See: http://ec.europa.eu/newsroom/document.cfm?doc_id=1093

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 Pricing of Public Sector Information Study (POPSIS) (Deloitte, 2011)422. Whereas the first three studies concentrate on non-PSI specific topics (i.e. the “European Data Market” and “Open Data”), the Vickery and POPSIS studies are focused on PSI itself. As part of the preparation phase of our approach to quantification, numerous other documents have been consulted. We have mined all quantitative data available in the reports and collated them in an Excel file, which feeds into the work on the quantification. A comprehensive list of the documents consulted is provided in the Annex. In the following table a brief overview of the scope of the above-mentioned studies, the approach used to provide quantitative estimates, as well as the relevant types of estimates is given.

422 See: https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information-study-popsis- models-supply-and-charging-public-sector

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Table 14 –Comparative overview of key existing studies

Study Objective / Scope Approach for estimates Relevant types of estimates European Data Definition, assessment, and Model forecasts until 2020 based on estimates of key  Number of data workers Market study measurement of the European macroeconomic indicators and assumptions for three different  Number of data companies (IDC & Open Data Economy scenarios.  Revenues of data companies Evidence)  Data market value  Data economy value The report does not contain the concrete formulas that were used

for the estimates. Per year until 2020, by Member State and industry. Creating Value Collection, assessment, and  Quantitative estimates based on existing data from secondary  Value of direct and indirect open data market through Open aggregation of all economic sources, publicly available statistics, and expert assumptions size Data evidence to forecast the  Illustrative examples of how open data improved the efficiency  Number of direct and indirect jobs created by (Capgemini et benefits of the re-use of Open for selected organisations open data al.) Data for all 28 Member States  Cost savings from open data The study draws heavily on the McKInsey, Vickery, and MEPSIR studies. Per year until 2020 (incl. growth rates), by The study does not contain concrete formulas, but a description that Member State, industry, and as a share of GDP can be emulated. Open Data Estimate of the potential  Quantitative sectoral estimates based on insights via exemplary  Approximate potential annual value enabled study annual value that the use of case studies by open data in seven “domains”   (McKinsey) Open Data could achieve in Illustrative examples of how open data improved the efficiency Estimates of specific elements for each seven domains: Education, for selected organisations “domain” transportation, consumer  Societal benefits are noted, but not quantified  Consumer share of potential value of open products, electric power, oil data and gas, health care, and The estimated values represent examples, not a comprehensive consumer finance. sizing of values across sectors. The report does not contain concrete formulas. Strong focus on third countries. Focus on private activities based on Open Data in sectors, not necessarily governmental data / PSI. Review of  Review of evidence on the  Literature review focused on PSI market size and impacts  Direct PSI re-use market

Study Objective / Scope Approach for estimates Relevant types of estimates recent studies importance and growth of  Estimate of PSI market size and aggregate economic impacts  Direct and indirect economic impacts from on PSI re-use PSI, principally in the EU, to PSI applications and use (Vickery) the extent that quantitative The report does not contain the concrete formulas used to provide  Economic impacts from direct PSI use and re- studies are available; estimates. use activities if PSI policies were open, with  Top-down estimates of the easy access for free or marginal cost of The description of evidence cannot easily be followed. value of the PSI market in distribution the EU and the economic Assumptions are largely based on evidence from third countries.  Estimate of efficiency gains in existing value of PSI in the EU in Estimates of the market value of direct PSI re-use (the economic operations general “footprint”) in domains where re-use is not a principal activity, or in  Estimate of impact of open access to R&D government and research activities are not included in the report. results POPSIS  Analysis of EU Public Sector  21 validated case studies, incl. case-specific calculations of Illustrative from case studies: Bodies that have changed quantitative data (Deloitte)  PSI revenues as a share of PSB budget their charging policy vis-à-  Overview of the quantitative case study findings  Increase in number of re-users for PSBs that vis PSI (incl. cost-recovery moved to marginal and zero cost charging policies) The report contains case-specific formulas, e.g. for FTEs, salaries,  Budget of PSBs  Assessment of the impact and case-specific aggregations.  FTEs in PSBs (re-use facilitation) of that change of policy on information producers and  PSI sales revenues re-users  Cost recovery ratio  Number of re-users Source: Deloitte

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While the summary provided above constitutes a high-level overview, it shows that there are differences between the studies in terms of their objectives and scope, their specific approaches towards quantitative and qualitative data, as well as the types of specific estimates they contain. The most important difference between the studies is their focus. Whereas some concern the data economy in general, others concern open data or PSI itself. The relationship between these elements is visualised below.

Figure 26 – Relation of different types of data in the data economy

Source: Deloitte Moreover, the following differences between the studies can be noted:  Capgemini’s Creating Value through Open Data study focuses on the area of open data and uses quantitative data to model the size of the open data market and the benefits of the re-use of open data across the EU. The study contains a description of formulas that can easily be emulated.  POPSIS, by contrast, focuses on PSI itself, but is using a more qualitatively oriented case study approach instead of a purely quantitative model to estimate costs. Within 21 case studies, different quantitative indicators such as PSI revenue, costs, and necessary FTEs are identified and illustrated in a case-specific context. The study contains case-specific formulas that cannot easily be applied to a more general context.  Vickery uses a combination of a qualitative literature review and quantitative modelling to estimate the direct and indirect economic impacts of PSI re-use – under given conditions, as well as under conditions of improved accessibility and marginal to zero charges for PSI. The study does not explain its underlying formulas at the necessary level of detail for them to be emulated. To conclude, while the available studies provide certain useful reference points that will feed into the present study, a comprehensive framework for assessing costs and benefits of PSI with detailed underlying formulas has not been identified.

In addition to the above identified differences between the existing studies, there are also gaps between the data and estimates provided in existing studies and the information needs as discussed with the Commission in the meeting on the First Interim Report of this study. These are highlighted in the following section.

5.1.2 Landscape of different estimates of the economic value

The most recent Analytical Report n9 on the European Data Portal423 contains an analysis of existing estimates concerning the economic value of Open Data / PSI.424 The data referenced in this analytical report stem from different sources with a different temporal, geographical, and substantial scope.425

Table 15 –Approaches used in existing studies

Author Name of the study Year Scope Substance Geography Top-down approaches McKinsey426 Open data: Unlocking innovation and 2013 Open Data Global performance with liquid information. Omidyar Open for Business: How open data can 2014 Open Data G20 + Australia Network427 help achieve the G20 growth target. A Lateral Economics report commissioned by Omidyar Network. GovLab and Open data impact: When demand and 2016 Open Data Global Omidyar supply meet. Key findings of the open Network428 data impact case studies. Bottom-up approaches Deloitte UK429 Open data. Driving growth, ingenuity 2013 PSI United Kingdom and innovation.

423 See: https://www.europeandataportal.eu/sites/default/files/analytical_report_n9_economic_benefits_of_open_da ta.pdf 424 The available estimates from various sources have been visualised (p. 18) based on the work done by the Konrad-Adenauer-Stiftung in 2016. See: http://www.kas.de/wf/de/33.44906/ 425 The exact approach used for this is, however, not indicated in the report. 426 See: Open data: Unlocking innovation and performance with liquid information. Available at: https://www.mckinsey.com/~/media/McKinsey/Business%20Functions/McKinsey%20Digital/Our%20Insights/ Open%20data%20Unlocking%20innovation%20and%20performance%20with%20liquid%20information/MGI_O pen_data_FullReport_Oct2013.ashx 427 See: Open for Business: How open data can help achieve the G20 growth target. A Lateral Economics report commissioned by Omidyar Network. Available at: https://www.omidyar.com/sites/default/files/file_archive/insights/ON%20Report_061114_FNL.pdf 428 See: Open Data Impact. When Demand and Supply Meet. Key Findings of the Open Data Impact Case Studies. Available at: http://odimpact.org/files/open-data-impact-key-findings.pdf 429 See: Open data. Driving growth, ingenuity and innovation. Available at: https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/deloitte-analytics/open-data-driving- growth-ingenuity-and-innovation.pdf

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Author Name of the study Year Scope Substance Geography Konrad- Open Data. The Benefits. Das 2016 Open Data Germany Adenauer- volkswirtschaftliche Potenzial für Stiftung Deutschland. (KAS)430 Specific EU approaches MEPSIR431 MEPSIR. Measuring European Public 2006 PSI EU25 + Norway Sector Information Resources. Final Report of Study on Exploitation of public sector information – benchmarking of EU framework conditions. Vickery432 Review of recent studies on PSI re-use 2011 PSI EU27 and related market developments Capgemini433 Creating value through open data: A 2015 Open Data EU28+ study on the Impact of Re-use of Public Data Resources. IDC434 European Data Market SMART 2017 Open Data EU28+ 2013/0063. Final Report.

Source: Deloitte In the recent European Data Portal report, the value of Open Data / PSI as a percentage of GDP (within their specific geographical scope) based on the studies provided in the table above435, has been applied to the overall GDP of the EU28+. This means that estimates with different substantial, geographical, and also temporal scope have been standardised and adjusted to provide a picture of the landscape of estimates available for the EU28+.436 The results of this landscaping exercise are visualised below.

430 See: Open Data. The Benefits. Das volkswirtschaftliche Potenzial für Deutschland. Available at: http://www.kas.de/wf/doc/kas_44906-544-1-30.pdf?160418125028 431 See: MEPSIR. Measuring European Public Sector Information Resources. Final Report of Study on Exploitation of public sector information – benchmarking of EU framework conditions. Available at: http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=1198 432 See: Review of recent studies on PSI re-use and related market developments. Available at: http://ec.europa.eu/newsroom/document.cfm?doc_id=1093 433 See: Creating value through open data: A study on the Impact of Re-use of Public Data Resources. Available at: https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_open_data_0.pdf 434 See: European Data Market SMART 2013/0063. Final Report. Available at: 435 The necessary groundwork for this exercise has been done by the Konrad-Adenauer-Stiftung in 2016. See: http://www.kas.de/wf/de/33.44906/ 436 Within this approach a differentiation of specific Member States and third-countries in their readiness for PSI and/or Open Data is hardly possible. Thus, the approach implicitly assumes that assumptions that can be applied globally, in relation to the G20+Australia, or for specific countries such as Germany and the United Kingdom are also applicable to the entire EU28+.

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Figure 27 – Landscape of estimates for the economic benefits of Open Data (situation today, standardised for EU28+)

Source: Deloitte based on the work by Capgemini, Deloitte UK, GovLab, IDC, Konrad-Adenauer-Stiftung, MEPSIR, McKinsey, Omidyar Network, and Vickery Whereas the X-axis of the graph shows the year in which a specific study on which the estimates are based, the Y-axis displays the assessment of the ambition of the available estimates (as also presented in the recent European Data Portal report by Capgemini based on the work done by the Konrad-Adenauer-Stiftung). The size of the bubbles shows the value of the total economic benefits of Open Data / PSI estimated by each of the studies. Bubbles with blue fill originally relate to estimates for the benefits of Open Data, whereas bubbles with green fill specifically concern PSI. Moreover, bubbles with grey border originally concerned global estimates (i.e. top-down approach), a light blue border denotes EU28+ estimates that are based on one country only, and a petrol border denotes estimates that have been developed with a specific EU focus (i.e. EU25+Norway, EU27, EU28, EU28+). The graph shows that the landscape of available estimates for the economic benefits of Open Data / PSI could hardly be more diverse, ranging from a very conservative estimate of 27 billion Euro per year (MEPSIR, 2006) to 674 billion Euro (McKinsey, 2013). The graph also shows, however, that the estimates developed as part of this study (circled in light green) are roughly in line with its predecessors – they are more ambitious than those developed as part of some studies while they are less optimistic than e.g. the estimates by others. The estimate charted in the figure above refers to the outcome of our model for the baseline scenario in 2020. The specific estimate is also charted in section 4.4.

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5.2 Data gathered in view of Commission’s data needs Table 16 presents the types of quantitative estimates and the quantitative data gathered in relation to the European Commission’s data needs as discussed during the First Interim Report meeting on 6 December 2017, as well as in relation to the feedback on the Second Interim Report on 11 January 2018. We have differentiated between data that has been estimated based on our model, the interviews carried out in ten Member States, as well as the analysis of secondary literature. Table 17 specifies the types of quantitative information gathered as part of the interviews in the Member States.

Table 16 –Types of estimates made and data gathered in relation to the Commission’s data needs

Quantitative data Available quantitative data estimated / gathered by Deloitte needs General indicators Economic value of PSI Deloitte model For all 28 EU Member States, from 2010-2030:  Direct economic value  Indirect economic value  Total economic value Specific figures are provided in the respective graphs in section 4.4. Interviews in the Member States - Analysis of secondary literature (if not used as part of the Deloitte model) See the literature referenced above and below, especially in section 4.4.2 Number of stakeholders Deloitte model affected (incl. re-users) For all 28 EU Member States, from 2010-2030: by the Directive:  Total number of stakeholders affected Data providers:  Number of contracting authorities  Contracting  Number of cultural institutions (museums & public libraries) authorities;  Number of para-public  Public museums and  Number of research institutions libraries;  Number of businesses affected  Para-public bodies;  Number of citizens affected Specific figures are provided in the respective graphs in section 4.4.  Research institutions; Interviews in the Member States Re-users;  List of re-users of cultural data in Italy based on the project OpenData200 – 52 re-users in total End-users.  The “Fragdenstaat” Website of OKF mentions around 12.400 institutions that could potentially react on requests of the public and can be accessed via the “Fragdenstaat” website per email  Number of requests and requests in relation to which German authorities have charged less than 50 Euros in 2016: 88555 requests, 1043 requests that have been charged, 371 requests charged with less than 50 Euros (according to Federal Ministry of the Interior)  Information from Poland: o 621 databases available from 79 institutions, around 4 583 different units of information (reports, tables, notes, directives etc.) 205

Quantitative data Available quantitative data estimated / gathered by Deloitte needs o Only 10 institutions open data through API Analysis of secondary literature (if not used as part of the Deloitte model) - Number of open Deloitte model datasets published by - public sector bodies Interviews in the Member States (PSBs) and the development over time  Number of data portals counted by OpenDataSoft.com: 782  Number of datasets in the European Data Portal by the end of 2017: 741,832 (+30% compared to the year before)  List of cultural data sets available on the portal of the Italian Ministry of Cultural Heritage and Activities and Tourism – 9 datasets in total with more than 1.3 million documents  Total number of digitised museum documents in Poland: 43 200  Total number of online museum catalogues in Poland: 32  An estimated number of 20-25 new portals at national level have been implemented after the amendment of PSI directive 2013 according to a Greek PSI expert  Only one National Open Data Portal in Cyprus where public sector bodies publish their data online  In Sweden, 241 public organisations releasing data in compliance with PSI Directive (either offering a download page and/or an API compliant with DCAT-AP). These institutions have opened close to 600 PSI datasets by Mid-January (up from around 575 in the previous months). A large share of these datasets is provided by the Swedish Environmental Protection Agency (263). Overall, number of accessible datasets is increasing, also in the perception of interviewees on the supply and demand side. Analysis of secondary literature (if not used as part of the Deloitte model) - Number of apps and Deloitte model services developed using PSI (especially EU-wide - services) Interviews in the Member States - Analysis of secondary literature (if not used as part of the Deloitte model)  Share of information products and services based on public sector information: 25% (2006 MEPSIR)  Share of information products and services that are based on information produced or held by the public sector (Vickery 2012): 15-25%  Percentage of respondents to the survey who use PSI to produce products for consumers: 28% (2006 Office of Fair Trading)  Percentage of respondents to the survey who use PSI as an input to produce products for industry: 44% (2006 Office of Fair Trading) Cultural institutions Number of affected (incl. Deloitte model re-users) by the Directive For all 28 EU Member States, from 2010-2030:  Total number of stakeholders affected by the Directive  Number of public museums  Number of public libraries Specific figures are provided in the respective graphs in section 4.4. Interviews in the Member States

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Quantitative data Available quantitative data estimated / gathered by Deloitte needs Museums with open online catalogues in Poland: 30 Analysis of secondary literature (if not used as part of the Deloitte model) - Costs for affected Deloitte model stakeholders For all 28 EU Member States, from 2010-2030:  Total costs for cultural institutions, i.e. public museums & libraries Specific figures are provided in the respective graphs in section 4.4. Interviews in the Member States  Dutch National Archive is spending about 75 million over 15 years (paid by Ministry) digitising the 10% most requested/accessed archives. 25 FTE involved, out of 200FTE total.  Dutch Regional Archive: Costs for IT/networks is rising, whereas e.g. budget to buy physical books has halved, which is a sign of the times they say.  Cost for digitise 3500 volumes was 100.000 Euros according to Greek NTUA university library  Number of submitted data requests in Polish cultural institutions in 2017: 159 Analysis of secondary literature (if not used as part of the Deloitte model)  Cost to digitise 300 cultural documents and manuscripts (150.000 pages) was around $835.000437 De-facto exclusivity Is it happening Deloitte model systematically at present? - Interviews in the Member States  Dutch National Archive: Indexes, inventories and metadata creation in the past has led to some third party rights being created on them, especially for archives where collaboration took place with other non-EU countries. This afflicts 3% of their collection descriptions.  Agreements granting the exclusive right to the reuse of public sector information: 0 (MS Data Poland)  In Poland, none of the 16 cultural institutions interviewed indicated that, in the given period, any agreements granting the exclusive right to reuse public sector information was concluded Analysis of secondary literature (if not used as part of the Deloitte model)  Number of countries in which PSBs limit the re-use by licensing agreements: 11 out of 21 countries (2011 POPSIS)  Number of countries in which PSBs do not limit re-use by licensing agreements: 8 out of 21 countries (2011 POPSIS)  Share of private-users who would like to access more public GI but face accessibility problems (e.g. restrictive licensing and high prices): 79% (2012 Vickery)  Share of re-users who claim that many exclusive deals exist: 54% (2006 MEPSIR)  Share of public content holders who claim that many exclusive deals exist: 18% (2006 MEPSIR)  Number of PSBs who make a distinction between commercial and non-commercial licenses: 13 out of 21 countries (2011 POPSIS)  Number of PSBs who do not make a distinction between commercial and non-commercial licenses: 6 out of 21 countries (2011 POPSIS)

437 See: http://www.csntm.org/About/RecentProjects/Athens_NLG

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Quantitative data Available quantitative data estimated / gathered by Deloitte needs How likely is it to happen n/a in the future? What are the costs? Deloitte model - Interviews in the Member States  Dutch Regional Archive: Clearing of rights situation on e.g. books, articles and photos is very time intensive. For books/articles on average 1 hour per rights holding author, but a book can have up to 20 contributing authors. For photos on average 1 hour per image. Clearing rights is the biggest time sink, the actual scanning is the least time intensive. So they focus on bulk where possible. Paying 10.000 Euro per annum to Pictoright (rights holders representative), but unsure about the actual coverage that provides them for their photo collection.  Dutch National Archive: Pay Pictorights 20.000 Euro per annum to cover rights on photos collectively. Analysis of secondary literature (if not used as part of the Deloitte model) - What is the impact on n/a re-usability? What would the n/a (economic) consequences be of a mechanism be that makes de-facto exclusivity more difficult? Charging Revenue of public bodies Deloitte model on a day-to-day basis / present earnings of - public bodies from Interviews in the Member States PSI/data in Euro  In general open data from public sector are provided free of charge with minor exceptions (case by case taking into account only the additional manpower required in order to retrieve the requested data) according to Greek Libraries, the National Statistical Agency, research institutes, and the National Gazette;  Charging/Licences differences between dynamic and bulk data according to a Swedish re- user: o 40 SEK per user: Price for license to download (and use chart data offline) o 2,5 SEK per user: Price for license to stream (not using chart data offline) o EUR 1,000,000 Estimated foregone revenue for 12 months due to lack of access to chart data in Spain (for the whole service, not just in Spanish market)  Examples for differences in licensing fees (not taking into account VAT, commissions to Apple/Google for App Stores, etc.): price for a licence with full coverage per user (no fixed fee for access in these cases): EUR 5 in EE, EUR 8 in HR, EUR 7.2 in LV Analysis of secondary literature (if not used as part of the Deloitte model)  Average cost recovery ratio: 5.2% (2011 POPSIS) Total revenue in Euro Deloitte model For all 28 EU Member States, from 2010-2030:

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Quantitative data Available quantitative data estimated / gathered by Deloitte needs  (Additional) government revenue from PSI  In addition: per branch of government, per level of government Specific figures are provided in the respective graphs in section 4.4. Interviews in the Member States  Dutch National Archive: Revenue from access fees used to be about 30.000 per annum on a total operational budget of many millions. So switch to marginal costing had no impact. Only now charge where bespoke services are needed, as alternative allow visitors to digitise documents themselves on site for free. (invested in a scanning set-up that visitors can work with)  Dutch Regional Archive: Before marginal costing their revenue was 80k per annum. They decided to forego charging marginal costs, so provide everything for free. The people and time involved for administrative efforts for charging marginal costs can be spent better elsewhere in the organisation. This meant a drop of 50k per annum (so 63%), from 80k to 30k per annum.  Swedish public authority in the area of transport: o EUR 150,000 of annual revenue from sales before data was provided for free o EUR 75,000 still paid to partner agency which holds 50% of data and did not want to give away the revenue Analysis of secondary literature (if not used as part of the Deloitte model) - Cost of “full” open data n/a policy for public bodies Para-public bodies Number of para-public Deloitte model bodies, i.e. public bodies For all 28 EU Member States, from 2010-2030: covered by the  Number of para-public bodies affected by the Directive Procurement Directive Specific figures are provided in the respective graphs in section 4.4. Interviews in the Member States  Number of public sector bodies providing open data is around 264 according to the Greek Ministry in charge for PSI Analysis of secondary literature (if not used as part of the Deloitte model) - Total revenue of para- n/a public bodies for selling PSI in Euro Opportunity costs Deloitte model related to the lack of availability of data held - by para-public bodies Interviews in the Member States Dutch para-public body in the energy sector:  Receive several data requests per week (less than 5)  2 FTE is involved in dealing with these requests, biggest effort is determining if data that is requested can be shared, and what is allowed (as a mix of sources, with different contracts/rights/person related data involved). As a result currently 60% of data requests is denied. They are researching the reasons why (as it used to be better a few years ago)  Around 20 requests / year for re-use administrative documents according to a Greek PSI expert

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Quantitative data Available quantitative data estimated / gathered by Deloitte needs  Information from a collaboration project of Swedish para-public transport operators: o 44 Mio. data requests in the previous week (however: no idea on whether these requests are all human and/or automated updating in the background) o 2x a week, Google catches data (reaching more than 100,000 users, guesstimate) o 10 Mio. SEK to fetch and prepare data from regional/local sources o 2 FTEs organising 3rd party operations / advising how to use and present outputs o 4 FTEs in charge of input data (handling pricing and ticketing information) Analysis of secondary literature (if not used as part of the Deloitte model)  Commercial companies maintaining gas and water mains infrastructure) save 11 million Euro per annum on maintenance using ESA/Sentinel open remote sensing data.438  Amount of costs that derive from failure to exploit PSI (annually): 360,000,000£ (2006 Office of Fair Trading)  Estimated total compliance costs of EU business regarding PSI per annum: 40,000,000,000 € (2000 PIRA)  Average of FTEs involved in re-use facilitation: 30,64 (2011 POPSIS) Research data The extent to which Deloitte model access to repositories is restricted through - licensing Interviews in the Member States  Dutch Technical University on data availability: A shared data centre, where 3 technical and one agricultural university publish research data, has only some 7500 data sets available, which is a very small fraction of the actual amount of data created within those 4 universities.  Dutch Technical University on re-use requests: The number of reuse requests is small, this researcher received less than 5 last year. She reused published research data about 2 times that same year.  Dutch Technical University: Not many researchers are used to sharing data. It depends on the domain however, physicists and astrophysicists e.g. are very data-heavy domains and depend more on communal infrastructure to capture data, and that makes data sharing more logical.  Number of Polish scholarly journals provide access to their current issue on the internet with no fee: 947  Share of Polish scholarly journals provide access to their current issue on the internet with no fee: 0,49%  Share of researchers in the sample that made at least one publication open: 59%  Share of researchers in the sample that regularly making publications open: 12% Analysis of secondary literature (if not used as part of the Deloitte model) - Impact of opening up: Deloitte model  Data held by publicly For all 28 EU Member States, from 2010-2030: funded research  Direct economic value institutes  Indirect economic value  Data that is  Total economic value generated via Specific figures are provided in the respective graphs in section 4.4.

438 See: ESA/EARSC/The Green Land 2016, http://earsc.org/news/satellites-benefiting-citizens-the-case-of- pipeline-infrastructure-in-the-netherlands

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Quantitative data Available quantitative data estimated / gathered by Deloitte needs publicly funded research (including projects carried out by private companies) Opportunity costs due to n/a a lack of re-use of research data (due to licensing, lack of access etc.) Benefits and costs of n/a making research data which are already open re-usable APIs & dynamic data Cost of API installation / Deloitte model maintenance in a number of public sector - bodies Interviews in the Member States  Data from interview with Polish ministry: o IT equipment, programs and licences, computers and servers: 1,173,245 € o Preparation of project, feasibility study: 205,000 € o IT services, audits and tests, APIs: 2,069,048 € o Legal services, translations, consulting: 140,645 € o Salaries (experts working on open standards, trainers, coordinating portal design, partners´ costs: 2,195,714 € o Other salary related costs: 52,724 € o Training: 268,095 € o Training material: 25,789 € o Information and promotion: 150,864 € o Total: 6,281,123 € o Number of registers to which these costs relate: 7 o Life time of hard- and software (i.e. number of years over which costs are split): 7 o Share of EU funding: 84.67% o Average cost per year per register: 19,651 €  Data from interview with Swedish public authority: o Implementation costs mostly related to software, not hardware (using windows of opportunity for system updates/updating data formats, etc.) o 1000 hrs for setting up and testing data portal/API o 40 hrs (average) per month required for maintenance (3-7 hours) and development (rest). o Development is mostly done in sprints, using hours saved up previously. o Website/front end is open source, so no license fees are incurred 30%-50% of estimated efficiency gains (time saved, less money spent) with due to lack of entering information manually into web pages/drafting of report documents Analysis of secondary literature (if not used as part of the Deloitte model)  Cost structure (Source: Report on Reuse in Poland): o 34% of costs: digitalization, database related issues o Licence-related costs: (25%) and o Computer costs (20%)

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Quantitative data Available quantitative data estimated / gathered by Deloitte needs o Documentation: (18%) o Personnel trainings: (2%) and promotional activities (1%) How do the costs (of n/a implementation, maintenance, etc.) vary with regard to type of dataset, i.e. complex (dynamic) and simple (static) datasets? Quantification of the n/a problem if dynamic data is not made available in a timely fashion (necessary to facilitate re-use) List/Number of Deloitte model “important” datasets that that should be - accessible via APIs Interviews in the Member States  Main data portals in Germany: o GovData o Geoportal.de (120,000 data sets; 1,800 data providers) o mCLOUD o Copernicus Data and Exploitation Platform – Deutschland (CODE-DE) o Geoportal GDI-BMEL o Marinen Daten-Infrastruktur für Deutschland (MDI-DE) Polish institution most frequently requested for data: Institute for Meteorology and Water Management (207 of 237) Analysis of secondary literature (if not used as part of the Deloitte model) - What are the benefits Deloitte model and costs of imposing APIs “when relevant” - (for certain datasets Interviews in the Member States only)?  Information from interview with Polish public authority: o EU funding for API implementation programme 2017-2020 (Total cost): 25 607 323 PLN o Costs to develop an API for metadata (prepared by National Library for hackaton): 80,000 PLN o Cost to develop API for a Hackathon: 40-50,000 PLN o Estimates on costs of APIs incl. preparation of data and reports, design and programming, tests, API implementation and integration (Central Registry of Vehicles and Drivers (CEPiK)):2,204,160 PLN o Estimates on costs of APIs incl. preparation of data and reports, design and programming, tests, API implementation and integration (National Health Fund (3 databases)): 4,500,000 PLN o Estimates on costs of APIs (incl. preparation of data and reports ,design and programming, tests, API implementation and integration (Information finance management system of tertiary government): 184 000 PLN o Estimated costs to implement and run the API for the central public administration

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Quantitative data Available quantitative data estimated / gathered by Deloitte needs (Number of FTEs (one year)): 10 o Estimated costs to implement and run the API for the central public administration (Cost of API): 2,500,000 PLN  Information from interview with Swedish public agency in the area of transport  Costs examples to change system / procedures towards data warehouse / open API solution o 6 month implementation period (expected duration of the project is from October- April/ May) o 2 million SEK (total) for an external consultant/IT person setting up the website/database infrastructure. o Staff costs for implementation: ½ FTE for project manager (over 6 months), 1/5 FTE for administration tasks and 1 FTE (2 months) for preparing existing data, i.e. reformat it. o In addition, the communication officer is involved in design, not sure about time spent on it. o 100.000 SEK (one-off) for updates of different licenses.  No barrier with regard to foregone revenues: The organisation does not charge for anything. It has always been free (at least in the 3 prior years, while interviewee worked for the organisation). Analysis of secondary literature (if not used as part of the Deloitte model) - Source: Deloitte

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Table 17 –Types of quantitative information gathered as part of the interviews in the Member States

France Germany Greece Italy Netherlands Poland Cyprus Luxemburg Croatia Sweden General (info than cannot clearly be linked to one of the areas below) Number of public sector bodies X X X X X X providing open data Number of data requests (per X X X X X X year, overall and charged ) Number of main data portals, X X X X X X X datasets Costs for opening data through X X API Number of re-users X X (Charges of public authorities) (X) (X) Number of licenses / formats X Cultural data List of re-users X List of main data portals and X X datasets Good practice examples X X Costs for digitisation439 X X X X X FTEs for digitisation (X) Costs related to clearing rights X

Revenue from (marginal) charging X X

439 For instance in relation to books, manuscripts or volumes, as well as costs overall.

France Germany Greece Italy Netherlands Poland Cyprus Luxemburg Croatia Sweden / licensing Forgone revenue from providing (X) data for free440 Number of apps for museums & X resp. downloads Number of downloads of X documents Para-public entities Number of data requests X (X) FTEs dealing with requests X (X) Cost savings for maintenance of X infrastructure Research institutions Awareness X Number of datasets available in X data centre Number of re-data requests X Time savings for data journalist X

Source: Deloitte. The colour coding denotes specific groups of estimates that can be clustered together although they refer to different problem areas identified by the Commission.

440 Data that would otherwise be charged marginally

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Upon the European Commission’s request, we have provided specific information below in relation to the Baseline Scenario and the following Policy Options in relation to the year 2017 and 2030.

Table 18 – The Policy Options

Name Description of elements Baseline No policy change: maintaining the current approach without changes (baseline). Scenario This option of 'no policy change' would mean that the current provisions of the Directive remain applicable and their national transposition instruments must be applied. The Member States would be bound by the rules set by 2003 Directive, partly modified by Directive 2013/37/EU Policy Packaged solution – lower intensity of regulatory intervention Option 1 / The Policy Option includes the following changes: PO1  Amending article 5 in order to entice public sector bodies to make dynamic data available for re-use immediately after collection via an API.  Amending article 6 to limit recourse to exceptions to marginal cost charging: deleting the exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c).  Defining a limited set of high-value datasets to be released as open data (charging limited to marginal cost, open licence) across the EU on a basis of a Delegated Act.  Extend the scope of the PSI Directive to research and educational establishments to cover administrative data and research results, focusing on the re-usability of already accessible data.  Extend the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply. Modify article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity. In addition to these regulatory changes, this option includes an update and reinforcement of the Recommendation on access to and preservation of scientific information in the specific areas. Policy Packaged solution – higher intensity of regulatory intervention Option 2 / The Policy Option includes the following changes: PO2  Amending article 5 in order to create an obligation to make dynamic data available for re-use immediately after collection via an API.  Introducing free of charge re-use as the only rule for all documents covered by the Directive.  Extending the scope of the PSI Directive to research and educational establishments so as to cover administrative data and research results and to mandate educational and research establishments and research funding bodies to implement open access policies.  Extending the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU or on the basis of a concession bodies and entities under the default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.).  Modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to

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Name Description of elements 'de facto' exclusivity. In addition to these regulatory changes, this option includes an update and reinforcement of the Recommendation on access to and preservation of scientific information so as to take into account of the policy and technological changes occurred since its adoption, and to provide further guidance on opening up research data and on developing incentive schemes and reward systems for researchers to share data.

Source: European Commission, tabulation by Deloitte. The European Commission indicated that the following tables would need to be completed in line with the Better Regulation Guidelines:

 REFIT Cost Savings;  Overview of Benefits; and  Overview of costs. The templates provided in the Better Regulation Guidelines have been adapted slightly to encompass the data for the baseline scenario and the three Policy Options.

Table 19 – REFIT cost savings

Description 2017 2030 Comments Baseline Scenario 255.3 billion € Public authorities Overall annual PO1 cost savings for 21.9 billion € 311.2 billion € Public authorities public authorities PO2 336.4 billion € Public authorities

Source: Estimate by Deloitte based on Eurostat, Capgemini, IDC, MEPSIR, OECD, PwC, Shakespeare, Vickery, various business associations, and data gathered as part of interviews

Table 20 – Overview of benefits

Description PO1 PO2 Total benefits (Δ PO vs BS, in 2030) Growth of direct economic value 147.2 billion € 213.5 billion € Growth of direct PSI-related employment 0.06 million 0.08 million Growth of cost savings 55.9 billion € 81.1 billion € Growth of additional government revenue 30.6 billion € 44.4 billion € Reduction of costs -0.8 billion € -1.2 billion €

Source: Estimate by Deloitte based on Eurostat, Capgemini, IDC, MEPSIR, OECD, PwC, Shakespeare, Vickery, various business associations, and data gathered as part of interviews

Table 21 – Overview of costs

Citizens/Consumers Businesses Administrations

One-off Recurrent One-off Recurrent Total

BS Direct and - - - - 3.8 billion € PO1 indirect - - - - 3. billion €

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annual costs PO2 in 2030 - - - - 2.6 billion €

Source: Estimate by Deloitte based on Eurostat, Capgemini, IDC, MEPSIR, OECD, PwC, Shakespeare, Vickery, various business associations, and data gathered as part of interviews 5.3 Overview of assumptions and outcomes of the quantitative modelling This section provides an overview of the key assumptions and outcomes of the quantitative model in table format. The following table provides the key assumptions used in the model. They are based on the best data available from the interviews carried out as part of this study, as well as the available secondary literature and expert opinions.

Table 22 –Key assumptions used in the quantitative model

Area of estimates Specific assumption / Indicator Source Number of stakeholders affected CAGR Contracting authorities 0.5% Eurostat Cultural institutions 0.5% Para-public bodies -1.0% Research institutes 0.5% Economic value Direct economic 2010 32,000,000,000 € Vickery value 2015 44,463,765,786 € Share of economic Agriculture 0.5% value per sector Industry 13.3% Construction 3.6% Trades & Transport 13.2% ICT 8.9% Finance and Insurance 8.1% Real estate 11.9% Professional services 11.0% Public administration 29.2% Arts, entertainment, recreation 0.5% CAGR PSI 6.8% Ration Direct / Lower bound 3.5 Vickery & Indirect Market Shakespeare Size Upper bound 3.78

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Area of estimates Specific assumption / Indicator Source Employment Shares of jobs Share of Open Data jobs in Knowledge Intensive Capgemini Activities 0.078% Share of PSI-related jobs of all Open Data jobs in Expert Knowledge Intensive Activities 80% assumption Share of PSI jobs in Knowledge Intensive Activities 0.062% Cost savings + revenue Shares Share of spending that could be saved 0.022% Capgemini Expert Share of additional revenue 0.010% assumption Costs Data from Polish IT equipment, programs and licences, computers and Interviews in 1,173,245 € stakeholders servers Poland Preparation of project, feasibility study 205,000 € IT services, audits and tests, APIs 2,069,048 € Legal services, translations, consulting 140,645 € Salaries (experts working on open standards, 2,195,714 € trainers, coordinating portal design, partners´ costs Other salary related costs 52,724 € Training 268,095 € Training material 25,789 € Information and promotion 150,864 € Total 6,281,123 € Number of registers to which these costs relate 7 Life time of hard- and software (i.e. number of years over which costs are split) 7 Share of EU funding 84.67% Average cost per year per register 19,651 € Policy options Share of impacts Minimalist Policy Expert 89% minimalist and Option assumption maximalist POs can Maximalist Policy achieve 129% Option Benefits: Policy Options Minimalist Maximalist Expert Share of assumption Charging 23% 18% contributions to benefits of Research institutions 20% 20%

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Area of estimates Specific assumption / Indicator Source intermediate policy Para-public bodies 29% 36% option APIs 20% 19% Exclusive agreements 10% 9% Costs: Policy Options Minimalist Maximalist Expert Share of assumption Charging 23% 18% contributions to costs of intermediate Research institutions 20% 20% policy option Para-public bodies 29% 36% APIs 20% 19% Exclusive agreements 10% 9%

Source: Deloitte

Peer review of the assumptions used A number of assumptions used for the quantitative model are based on expert judgment. This means that the data used in the underlying formulas is based on the best data available, challenged and refined (where necessary) by the experts of the consortium for this assignment. The assumptions used for the estimate of the impact of the Policy Options were subject to an internal, in-depth peer review process. As part of this process, different assumptions were introduced in the model to compare the different outcomes. The result of this sensitivity analysis was that the assumptions provided in the table above seem to be, at this stage, the most reasonable and pragmatic based on the best data available in relation to this specific subject.

The assumptions regarding the impacts of the Policy Options vis-à-vis the baseline scenario require further attention. They were developed as part of an iterative, internal peer review process and are not based on quantitative evidence, e.g. identified in secondary sources. Therefore, we would like to share some of the thoughts voiced by senior experts of the consortium in order to illustrate the types of discussions that have preceded the assumptions currently included in the quantitative model. The feedback below concerns the packaged Policy Options (put forward in their document provided on 22 January 2018.

Table 23 –Exemplary feedback on the impacts of the Policy Options

Assessment 1 Assessment 2 Assessment 3 Assessment 4 PO1: A lot of benefit can be There are several points to This Policy Option is From the view of para- Lower obtained by pointing consider as pre-requisites: addressing the key issues, public-public bodies, this Member States in the i.e. reusability of existing is the most feasible intensity of  It’s too early to revise direction of enabling the Directive. The data available while it is, solution among the ones regulatory policies, even without a at the same time, on the table at this stage. intervention European Commission lot of legislative changes. should wait and let the following a pragmatic and It is an improvement vis-a- At the same time, 2013 Directive produce efficient approach is the baseline scenario.

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Assessment 1 Assessment 2 Assessment 3 Assessment 4 however, it should be its effects regarding the costs for However, if public-public recognise that more can  In 4-5 years there will stakeholders. bodies can decide for be done with additional be a much better themselves about an open (legal) tools. understanding of the data policy combined with Therefore, this PO should deficiencies - if any - ALL obligations, the score less overall than and the mechanics and majority of para-public PO2. effects of the possible bodies will not open their data. However, the difference interventions. will not be huge.  In the meantime, the Moreover, it is negative European Commission for para-public bodies that should watch Member this option emphasises States carefully and limitations to exceptions take legal actions if from the marginal cost there is de facto non- rule, as well as open compliance. licenses (i.e. no control about re-use).  In addition, emerging PO2: An increased scope case law should be The feasibility of this This Policy Option can be Higher (extended to para-public shared widely. Policy Option is very expected to have a high bodies and research limited. impact, but is not feasible intensity of  It is crucial to plan the institutions, and a bigger timing of the next Moreover, this Policy in practice. regulatory focus on APIs) could intervention regulatory intervention Option will not have a Member States’ public achieve useful effects. carefully and build up strong impact because it sector bodies and para- However, this is less valid support at Member will not create a public bodies can be for the options State level. behavioural change, e.g. expected to oppose this concerning charging and Moreover, regulating, by researchers. comprehensive option exclusivity as the current whether it is taking away As researchers will have because of the high direct evidence does not rules or creating new ones little incentives to share costs for their contractors. support that this is a big will create a lot of their data they won’t do, Combined with a free of problem right now. transaction costs at all even under changed charge re-use regime, this levels. For that reason, it legislative requirements. Policy Option seems could be argued that there This is the prime reason unrealistic, especially will be a negative impact for which most open from the view of para- on the general level of access policies have little public bodies. usage that the PSI impact in practice. Directive has created.

Source: Deloitte The following table provides the key outcomes of the model for the following types of metrics:

 Number of stakeholders “affected”441;  Direct and indirect economic value of PSI;  Number of persons (in-)directly employed in the area of PSI;  Cost savings from PSI for public authorities;  Additional government revenue from PSI; and

441 This means the total number of stakeholders that are currently concerned by the Directive or could be concerned in the future based on the content of the policy options.

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 Costs of PSI for public sector bodies (i.e. contracting authorities, cultural institutions, para-public bodies, research institutions). For each of the above, a figure is provided for the years 2010, 2017, and 2030, i.e. in relation to the evaluation and the baseline scenario, as well as in relation to the Policy Options. The table also contains an indication of the relative changes over time, as well as the relative changes under the Policy Options vis-à-vis the baseline scenario.

Table 24 –Key outcomes of the quantitative model

Baseline Policy Options (2018-2030) Evaluation Scenario (2010-2017) (2018-2030 PO1 PO2 Number of stakeholders “affected” per year (in million) 2010 0.7 2017 1.0 1.0 1.0 1.0 2030 2.5 3.1 3.3 Δ over time 36% 148% 203% 227% (rel. & abs.) 0.3 1.5 2.1 2.3 Δ vs. Baseline 22% 32% (rel. & abs.) 0.6 0.8 Total annual economic value (in billion) 2010 140.7 € 2017 219.9 € 219.9 € 219.9 € 219.9 € 2030 671.8 € 819.0 € 885.3 € Δ over time 56% 205% 272% 303% (rel. & abs.) 79.2 € 451.9 € 599.1 € 665.4 € Δ vs. Baseline 22% 32% (rel. & abs.) 147.2 € 213.5 € Number of persons (in-)directly employed in the area of PSI per year (in million) 2010 0.04 2017 0.05 0.05 0.05 0.05 2030 0.24 0.30 0.32 Δ over time 21% 392% 499% 548% (rel. & abs.) - 0.2 0.2 0.3 Δ vs. Baseline 22% 32% (rel. & abs.) 0.1 0.1 Annual cost savings from PSI for public authorities (in billion) 2010 1.3 € 2017 21.9 € 21.9 € 21.9 € 21.9 € 2030 255.3 € 311.2 € 336.4 € Δ over time 1532% 1066% 1322% 1437% (rel. & abs.) 20.5 € 233.4 € 289.3 € 314.5 € Δ vs. Baseline 22% 32% (rel. & abs.) 55.9 € 81.1 €

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Baseline Policy Options (2018-2030) Evaluation Scenario (2010-2017) PO1 PO2 (2018-2030 Additional annual government revenue from PSI (in billion) 2010 0.5 € 2017 6.7 € 6.7 € 6.7 € 6.7 € 2030 139.6 € 170.2 € 184.0 € Δ over time 1133% 1969% 2422% 2627% (rel. & abs.) 6.2 € 132.9 € 163.4 € 177.2 € Δ vs. Baseline 22% 32% (rel. & abs.) 30.6 € 44.4 € Annual costs of PSI for public sector bodies (in billion) 2010 9.8 € - - - 2017 9.4 € 9.4 € 9.4 € 9.4 € 2030 - 3.8 € 3.0 € 2.6 € Δ over time -4% -59% -68% -72% (rel. & abs.) -0.4 € -5.6 € -6.4 € -6.8 € Δ vs. Baseline -22% -32% (rel. & abs.) -0.8 € -1.2 € Source: Deloitte The following sections contain detailed graphs to visualise the underlying development of the numbers indicated above over time. 5.4 Evaluation: Outcomes of the quantitative modelling As part of our approach, we have used available quantitative data from Eurostat, OECD, and other secondary sources to estimate the following:

 Number of stakeholders “affected”442;  Direct and indirect economic value of PSI;  Number of persons (in-)directly employed in the area of PSI;  Cost savings from PSI for public authorities;  Additional government revenue from PSI; and  Costs of PSI for public sector bodies (i.e. contracting authorities, cultural institutions, para-public bodies, research institutions). By applying a quantitative model (or rather models) that has been developed as part of the present study (more specifically in relation to the evaluation part of the assignment),

442 This means the total number of stakeholders that are currently concerned by the Directive or could be concerned in the future based on the content of the policy options.

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estimates relative to each of the above elements have been made per Member State443, and from 2010 (i.e. three years before the amended Directive was adopted) to 2017. For each of the above metrics, the following sections provide estimates based on the application of the model(s) that have been derived.

5.4.1 Number of stakeholders affected

The following graph displays the development of the estimated EU28 aggregate number of stakeholders affected.

Figure 28 – Number of different types of stakeholders affected by the PSI Directive (EU28, 2010-2017)

0,8 350

300

250

200 0,6

150 stakeholders Million Million companies

100 Thousands of other

0,4 -

Companies using data Contracting authorities Cultural institutions (museums & public libraries)

Source: Estimate by Deloitte based on Eurostat, IDC, OECD, PwC, and various business associations. Dotted graph relates to the left, primary axis. The graph above displays the development of the EU28 aggregate number of stakeholders affected by the PSI directive in the period of 2010-2017. The graph shows that around 300,000 contracting authorities under the Public Procurement Directive are affected by the PSI Directive today. Around 70,000 relate to museums and libraries. In 2010 around 465,000 companies are expected to have been affected by the PSI Directive. The linear graph shows that by 2017 this number is expected to have been increased by 262,000 to around 727,000. Therefore, the number of companies using data is expected to have increases by 56% around since 2010.

443 Member State specific information is currently only available in the underlying Excel file but can be provided to the Commission upon request.

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Overall the large majority of stakeholders affected by the PSI directive are private companies using data. The development of the number potential end-users of PSI-based services is visualised below. At this stage, we assume that every legal person or citizen can potentially be an end-user of PSI-based services, e.g. during the development of a new marketing campaign or when watching the weather forecast. Thus, the following chart contains the development of the number of businesses and the number of citizens in the EU.

Figure 29 – Number of businesses and citizens as potential end-users of PSI-based services (EU28, 2010-2017)

520 24

23 510

23 Millioncitizens 22 500 Millionbusinesses 22

490 21

Number of citizens Number of businesses

Source: Estimate by Deloitte based on Eurostat. Dotted graph relates to the left, primary axis. The graph displays the development of the EU28 number of businesses and citizens who are potential end-users of PSI-related services. As can be seen above, in a very broad sense, all citizens can potentially benefit from PSI as end-users. The number of citizens has increased steadily until today. Similarly, the number of businesses has increased as well until today, providing the PSI market with an increasing amount of potential customers. The graph shows that in 2010 around 22 Million businesses are expected to have been potential end-users of PSI-based-services. By 2017 this number is expected to have been increased to around 24 Million businesses Therefore, the number of businesses as potential end-users of PSI-based-services is expected to have increases by around 2 Million since 2010. In 2010 around 503 Million citizens are expected to have been potential end-users of PSI-based-services. By 2017 the number of citizens had increased to almost 511 Million. Therefore, the number of citizens as potential end-users of PSI-based-services is expected to have increases by around 8 Million. Overall both the number of citizens and the number of businesses are expected to have increased in the period of 2010-2017.

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5.4.2 Economic value of PSI

In the below graph, the estimated direct, indirect, and total PSI economic value are provided. By direct economic value, we refer to the value of the PSI that is generated in other markets (e.g. by developing goods and services based on PSI). The indirect economic value refers to the value of goods and services that make use of those PSI-based goods or services. According to Vickery 444 and Shakespeare 445 , the indirect economic value is between 3.5 and 3.78 times as large as the direct economic value.

Figure 30 – Direct, indirect, and total economic value of PSI (EU28, 2010-2017)

250 €

Billions 200 €

150 €

100 €

50 €

- € 2010 2011 2012 2013 2014 2015 2016 2017

Direct Economic Value Indirect Economic Value Total Economic Value

444 See: http://ec.europa.eu/newsroom/document.cfm?doc_id=1093 445 See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198752/13-744- shakespeare-review-of-public-sector-information.pdf 446 It is, by default, expected that the impacts of changes to any piece of legislation practically “kick-in” around two years after the adoption of the changes.

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The graph below presents the estimated development of the total economic value of PSI per sector. As can be seen, public administrations are expected to benefit most from trade of PSI-based based goods and services. On the one hand, public administrations and budgets benefit from increased taxation of (new) PSI-based goods and services, as well as jobs. On the other hand, public administrations themselves benefit from the use of PSI-based goods and services and are thus expected to become more efficient and are able to save public budget. The industry, as well as businesses in the area of trade and transport are also expected to realise a major share of the overall economic value of PSI.

Figure 31 – Total economic value of PSI per sector (EU28, 2010-2017)

70 €

60 € Billions

50 €

40 €

30 €

20 €

10 €

- €

Agriculture Industry Construction Trades & Transport ICT Finance and Insurance Real estate Professional services Public administration Arts, entertainment, recreation

447 The industries and respective shares are based on the work of Capgemini to estimate the value of PSI in specific markets today. For simplification purposes, the shares are assumed to have remained constant over time although considerable variation is likely.

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2010, the total economic value of PSI for public administrations is expected to have been around 40 billion Euro. It is expected that this value has increased in linear fashion to roughly 64 billion Euro in 2017 (+24 billion Euro, + 60% compared to 2010). The economic value of PSI in the area of arts, entertainment, and recreation is expected to have been the lowest among all industries ranging from 700 million Euro in 2010 to 1.0 billion in 2017 (+ 300 million, +43%). For improved visibility of their relative size, the economic value of PSI for the different industries is depicted below in a bar chart.

Figure 32 – Total economic value of PSI per sector (EU28, 2017)

Arts, entertainment, recreation 1,1 €

Public administration 64,2 €

Professional services 24,1 €

Real estate 26,1 €

Finance and Insurance 17,7 €

ICT 19,6 €

Trades & Transport 28,9 €

Construction 7,9 €

Industry 29,2 €

Agriculture 1,1 €

€- €10 €20 €30 €40 €50 €60 €70 Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare.

5.4.3 Number of persons employed

The total number of persons employed in the EU28 has increased slowly but steadily during the last years according to Eurostat. The number of persons employed in areas of knowledge-intensive activities448 has developed similarly. Thus, it can be expected that the number of citizens employed in jobs relating to PSI has increased similarly from 2010 to 2017, albeit at a slightly higher growth rate.

448 According to Eurostat, an activity is classified as knowledge intensive if employed tertiary educated persons represent more than 33 % of the total employment in that activity. See: http://ec.europa.eu/eurostat/statistics-explained/index.php/Glossary:Knowledge_Intensive_Activity_(KIA)

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Figure 33 – Number of persons employed in the (data-driven) economy (EU28, 2010-2017)

250 60

50 200

40 150

30 100 KIA 20

10 Thousand Thousand employed PSI in

0 0 Million Million employed overall and in

Total persons employed Total persons directly employed in knowledge-intensive activities Total persons directly employed in the area of PSI

5.4.4 Cost savings from PSI for public authorities

At the same time governments are opening up their data, the can cut costs in other parts of government activity through the use of PSI. The gross savings are visualised below.

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Figure 34 – Public expenditures and cost savings from PSI for public sector bodies (EU28, 2010-2017)

8.000 € 25 €

20 €

15 € 6.000 € 10 € Billions

5 € Saving of gov. expenditure in

4.000 € - € Government Government expenditure inBillions

Government expenditure Savings of Government expenditure

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. The figure contrasts public expenditures and cost savings from PSI for public sector bodies between 2010 and 2017 for 28 EU Member States. Based on our quantitative model, EU governments are expected to have spent 5.5 trillion Euro in 2010, compared to 6.5 trillion in 2017 (a total increase of 15%). The use of PSI is expected to have saved around 20 billion additional Euro in 2017 that would have otherwise been spent. Based on the quantitative model, government savings have experienced a steep increase since 2015, which is expected to relate to the introduction of the 2013 revision of the PSI Directive. The overall cost savings are broken down by branch of government in the graph below.

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Figure 35 –Cost savings from PSI for public sector bodies in different government branches (EU28, 2010-2017)

6,0 €

Billions 5,0 €

4,0 €

3,0 €

2,0 €

1,0 €

- € 2010 2011 2012 2013 2014 2015 2016 2017

General public services Defence Public order and safety Economic affairs Environment protection Health Recreation, culture and religion Education Social protection

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. Based on our quantitative model, the figure above depicts estimated cost savings for public sector bodies in different branches of government between 2010 and 2017. According to the model, the highest increase of cost savings in absolute terms is estimated to have been experienced in the area of social protection (from 346 billion Euro in 2010 to 5.7 billion in 2017) and general public services (from 315 million Euro in 2010 to 5.1 billion Euro in 2017). However, while social protection and general public services are estimated to have benefited most from cost savings through the use of PSI in absolute terms, all sectors would benefit in relative terms. Finally, the increase in cost savings from PSI in 2015 can be related to the amended Directive of 2013, when the amount of released information increased and new re-use scenarios are expected to have been established. For improved visibility of their relative size, the cost savings for different government branches is depicted below in a bar chart for 2017.

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Figure 36 – Total cost savings from opening up PSI per branch of government (EU28, 2017)

Social protection 5,7 €

Education 3,0 €

Recreation, culture and religion 0,6 €

Health 2,4 €

Housing and community amenities 0,5 €

Environment protection 0,4 €

Economic affairs 2,5 €

Public order and safety 1,0 €

Defence 0,7 €

General public services 5,1 €

0,0 € 1,0 € 2,0 € 3,0 € 4,0 € 5,0 € 6,0 € Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. The figure below shows that most cost savings can potentially be realised at the central government level.

Figure 37 –Cost savings from PSI for public sector bodies at different levels of government (EU28, 2010-2017)

15 € Billions 10 €

5 €

- € 2010 2011 2012 2013 2014 2015 2016 2017

Central government State government Local government

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. The figure above depicts the estimated development of additional revenue from PSI for public sector bodies at different levels of government between 2010 and 2017. According to our quantitative model, additional government revenue from PSI in 2017 is estimated to have amounted to:

 13 billion Euros at the central government level (+12.2 billion Euros, 1548%)  2.4 billion Euros at the state government level (+2.3 billion Euros, 104%)

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 5.8 billion Euros at the local government level (+5.5 billion Euros, 106%) Thus, the highest amount of additional revenue is estimated to have been realised at the central government level.

5.4.5 Additional government revenue

In addition to cost savings, as already indicated in the section on the economic value, public administrations are also expected to benefit from increased revenue / taxation of PSI-based goods and services.

Figure 38 –Additional government revenue from PSI (EU28, 2010-2017)

6.200 € 8,0 €

6.000 € 6,0 € 5.800 €

5.600 € 4,0 €

5.400 €

2,0 € Revenue Revenue inBillions

Overall Government OverallGovernment 5.200 €

5.000 € - €

Additional Government Revenue Revenue from BillionsPSI

Government revenue Government revenue incl. PSI sales Additional government revenue from PSI

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. The figure above presents the estimated total government revenue and government revenue from PSI between 2010 and 2017 for 28 EU Member States, based on our quantitative model. EU governments are expected to have generated a total revenue of 5.5 trillion in revenue in 2010, compared to 6 trillion in 2017 (a total increase of 8%). Additional revenues from PSI are expected to have increased from less than 1 billion Euro in 2010 to 7 billion Euro in 2017 (i.e. less than 1% of the total government revenue in 2017). However, additional revenues have spiked since 2015. This could be related to the increased re-use of data after the introduction of the 2013 revision of the Directive. For instance, new services building from PSI might have generated additional income from taxes. The figure below presents the estimated additional revenue in relation to different government branches. Again, social protection and general public services are expected to benefit most from additional revenue.

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Figure 39 –Additional government revenue from PSI in different branches of government (EU28, 2010-2017)

2,0 €

1,6 € Billions

1,2 €

0,8 €

0,4 €

0,0 €

General public services Defence Public order and safety Economic affairs Environment protection Housing and community amenities Health Recreation, culture and religion Education Social protection

Source: Estimate by Deloitte based on Eurostat, Capgemini. Based on our quantitative model, the figure above depicts estimated additional government revenue from PSI in different branches of government between 2010 and 2017. According to the model, the highest increase of revenue in absolute terms is estimated to have been experienced in the area of social protection (from 141 million Euro in 2010 to 1.7 billion in 2017) and general public services (from 129 million Euro in 2010 to 1.6 billion Euro in 2017). However, while social protection and general public services are estimated to have benefited most from additional revenues from PSI in absolute terms, all sectors are estimated to have benefitted in relative terms. Finally, the increase in revenue from PSI in 2015 can be related to the amended Directive of 2013, when the amount of released information increased and new re-use scenarios are expected to have been established. For improved visibility of their relative size, the cost savings for different government branches is depicted below in a bar chart for 2017.

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Figure 40 –Additional government revenue from PSI (EU28, 2017)

Social protection 1,7 € Education 0,9 € Recreation, culture and religion 0,2 € Health 0,7 € Housing and community amenities 0,1 € Environment protection 0,1 € Economic affairs 0,8 € Public order and safety 0,3 € Defence 0,2 € General public services 1,6 €

0,0 € 1,0 € 2,0 € Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini. The following graph breaks down the additional government revenue according to different levels of government.

Figure 41 –Additional government revenue from PSI at different levels of government (EU28, 2010-2017)

5,0 €

4,0 € Billions

3,0 €

2,0 €

1,0 €

0,0 €

Central government State government Local government

Source: Estimate by Deloitte based on Eurostat, Capgemini. The figure above depicts the estimated development of additional revenue from PSI for public sector bodies at different levels of government between 2010 and 2017. According to our quantitative model, additional government revenue from PSI in 2017 is estimated to have amounted to:

 4 billion Euros at the central government level (+3.7 billion Euros, 1212%)  800 million Euros at the state government level (+650 million Euros, 533%)

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 1.8 billion Euros at the local government level (+1.7 billion Euros, 1200%) Thus, the highest amount of additional revenue could be potentially be realised at the central government level.

5.4.6 Costs of opening up PSI

The figure below visualises the costs of opening up PSI for all affected public sector bodies in comparison to the overall government revenue and expenditure. Costs of foregone revenues for public authorities have not been estimated due to a lack of data. It can be seen that the estimated overall costs to open up PSI are only a minor fraction of the total government revenue and expenditure. Although an increasing number of public authorities open up their data, the total costs of opening up PSI (i.e. not the average costs per institution) are currently expected to decrease due to the introduction of the 2013 revisions of the Directive, e.g. due to efficiency gains at the individual institutional level.

Figure 42 –Costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure (EU28, 2010-2017)

7.000 € 10,2 €

10,0 €

6.000 € 9,8 €

9,6 €

5.000 € 9,4 € Expenditure inBillions

Government Government Revenue & 9,2 € stakeholders inBillions

4.000 € 9,0 € Total costs to open for PSI all

Government expenditure Government revenue Total costs for all public stakeholders affected

Source: Estimate by Deloitte based on Eurostat, Capgemini, Deloitte (POPSIS), data gathered as part of interviews. Dotted graph relates to the left, primary axis. The graph depicts the costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure, aggregated for all 28 EU Member States over the timeframe 2010 to 2017. The graph shows that costs related to PSI are only a tiny fraction of the total government revenue and expenditure. The former is accounted for in single-digit billion Euro values, the

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latter one in accounted for in single-digit trillion Euro values. This means that PSI-related costs account for approx. around 0.1%-0.2% of overall government revenue and expenditure. Moreover, it shows that, whereas government revenue and expenditure increased steadily during this timeframe, costs for public authorities are expected to have decreased with the implementation of the 2013 changes. In 2015, for instance, PSI-related costs are estimated to have been around 10 billion Euro while the value decreased to 9.3 billion Euro in 2017.

5.4.7 Comparison of costs and benefits

In this section the overall, annual economic benefits of opening PSI are contrasted with the overall, annual costs of opening PSI. The aggregated benefits depicted in the graph below concern the economic value of PSI, the related cost savings for public authorities, and the additional government revenue (all per year). The costs charted below are equal to those charted in the section above.

Figure 43 –Costs and benefits of opening up PSI for different types of public sector bodies (EU28, 2010-2030)

300 € 10,1 €

250 €

9,8 €

200 € Billions

Billions 9,6 €

150 € Costs Costs of Opening inPSI

Benefits of Opening inPSI 100 € 9,3 €

Economic benefits of opening PSI Costs to open PSI

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, Shakespeare, Deloitte (POPSIS), data gathered as part of interviews. As can be seen above, the economic benefits of opening PSI are around 250 billion Euro today. In contrast, the costs associated with opening PSI are expected to be around 9.3 billion Euro in 2017. It is expected that the 2013 revision of the Directive triggered a decrease in overall costs for making PSI available.

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6 Possible future policy options

This Chapter introduces the problems identified for the future of the PSI Directive and illustrates the policy objectives which should guide and future policy intervention. Furthermore, the chapter presents the available policy options to be investigated through the assignment. 6.1 Assessment of problems 6.1.1 Introduction and problem tree

This section presents our current understanding of the existing and future problems under the PSI Directive, as well as their root causes and effects / impacts. This understanding, taking into account how different stakeholder groups are affected, is presented below by means of a problem tree.

Problem trees are usually a good way to illustrate the relevant causal relationships. Each of the boxes (and the links between them) that are included in the problem trees can be viewed as hypotheses, which will be further detailed, verified and assessed during the course of the assignment. Based on additional information and new findings, the current problem tree will be elaborated and refined. The problem trees should be read from the bottom to the top.

Below, we have prepared a consolidated problem tree incorporating and summarising the elements that are common across all problem areas:

 Research data;  Data held by para-public bodies;  Charging provisions;  APIs and dynamic data; and  Exclusive agreements. Thus, this problem tree should be seen as an introduction to the more detailed problem trees in relation to the problem areas (presented in Annex A).

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Figure 44 - Consolidated problem tree

Source: Deloitte There are large-scale trends and external factors driving problems under the PSI Directive. For instance, the Digitalisation of industry and society (incl. jobs) is on-going, the importance of cross-border transactions is increasing, and there is a growing need for data protection, government transparency, and accountability. At the operational level, existing problems are mainly caused by three types of barriers:

 Technical barriers; e.g. the use of different technical standards hampering interoperability;  Legal barriers; e.g. the application of different national rules by Member States under the PSI Directive;  Economic barriers, e.g. the use of different funding models and economic incentives by businesses regarding (the opening up of) their data. These operational problems lead to specific problems for businesses and citizens. Businesses incur undue costs, mostly in relation to accessing, making use of, and sharing data. Moreover, there seems to be (legal) uncertainty as regards specific data and associated rights which, in turn, can be a cost in itself (e.g. costs for lawyers to provide a legal analysis).

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Citizens suffer from unequal service provision across the EU as it is not always possible for all businesses in all Member States to provide the same services based on the same conditions. At the more macro-level, this has negative effects on the fairness of competition between businesses in the EU, especially in relation to SMEs. Moreover, it can be expected that (investments in) research and innovation do not reaching their full potential which, in turn, hampers the creation of jobs and the improvement of public services. Overall, this is considered to hamper economic growth and the functioning of the Digital Single Market while consumers are faced with limited freedom of choice and transparency of government activity.

6.1.2 The problems, their causes, and effects

In the next sections we will introduce problems, causes and effects derived from the assessment described above. In particular, we divided the problems in four areas which emerge more clearly from the evaluation and the analysis of the status quo as those on which intervention might be needed: research data, data held by para-public bodies, charging provisions and API and dynamic data. Assessment of the current and future problems This section describes the problems related to the key intervention areas mentioned above: research data, data held by para-public bodies, charging provisions and API and dynamic data. Research data Scientists, citizens and companies too often do not have access to the data underlying scientific findings. As we describe below, accessing data has many benefits, in terms of ensuring replicable research, increasing the productivity of science and promoting innovation. Yet data sharing remains the exception rather than the rule. There is consensus in the literature that researchers and research institutions are not yet fully sharing their data as would be optimal from a societal and scientific standpoint. The evidence come from bibliometric analysis and surveys of researchers.449 Self-reported data from survey of researchers show quite positive results:

 34% researchers surveyed by Elsevier report that they do not publish their data.  About 50% of Wellcome funded researchers report that they do make data available for reuse by others.  21% of researchers surveyed by Figshare state that they “never made their data available”.

449 The two most recent and recognized surveys have been publshed by Elsevier and Figshare in 2017. See https://www.elsevier.com/about/open-science/research-data/open-data-report and https://figshare.com/articles/The_State_of_Open_Data_Report_2017/5481187/1

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Yet when looking at actual behaviour from bibliometric analysis, the evidence is far less positive. According to Womack (2015), “within the top journals, only 13% of articles with original data published in 2014 make the data available to others.”450 Despite these differences, all studies report a consistent yearly growth in data sharing – for instance, from 57% to 60% in the survey by Figshare. This is confirmed by the increase in journals and funders that require data publication alongside the publication of results. At the moment of writing, 5000 publishers and organisations signed the Transparency and Openness Promotion guidelines – up from 600 in 2016.451 Horizon 2020 introduced the pilot on open data, with positive results.452 Similarly, many funding instruments require grantees to publish data alongside the research: he Sherpa Juliet database reports 41 funders with mandatory data archiving, although there are major differences in terms of strength of mandate, modalities and enforcement.453 In this sense, this quote from (Berghmans et al., 2017) summarizes well the situation: “open research data is a reality for policy makers, but has not yet become a reality for researcher”. There is also an increasing popularity of data journals – scientific publications devoted exclusively to data. The number of citation of data journals has grown from three in 2012 to more than one thousand in 2016. Another sign of the increasing attention towards data sharing is the strong growth in data repositories over the last years. The emergence of numerous general-purpose data repositories, at scales ranging from institution (e.g. a single university), to open globally- scoped repositories such as: Dataverse454, FigSharehttp://figshare.com, Dryad455 Mendeley Datahttps://data.mendeley.com/, Zenodohttp://zenodo.org/, DataHubhttp://datahub.io, DANShttp://www.dans.knaw.nl/, and EUData456. Re3data is an index of those repositories, and it has passed the 1500 milestone in 2016

450 Womack, R.P. (2015) Research data in core journals in biology, chemistry, mathematics and physics. PLoS ONE 10 (12): e0143460. doi:10.1371/journal.pone.0143460 . Similar findings are reported in Carlson and Anderson 2007; Faniel and Jacobsen 2010; Tenopir et al. 2011; Treadway et al. 2016; Wallis 2014; Zimmerman 2007). 451 https://cos.io/our-services/top-guidelines/ 452 According to the latest evaluation, only 35% of projects require opt-out (mainly on IPR grounds) while 15% choose to opt-in (in fields where open data is not the default option). 453 http://v2.sherpa.ac.uk/view/funder_by_data_req/requires.html 454 Crosas, M. "The Dataverse Network®: An Open-Source Application for Sharing, Discovering and Preserving Data". D-Lib Mag 17(1), p2 (2011) 455 White, H. C., Carrier, S., Thompson, A., Greenberg, J. & Scherle, R. The Dryad data repository: A Singapore framework metadata architecture in a DSpace environment. Univ. Göttingen, p157 (2008). 456 Lecarpentier, D. et al. EUDAT: A New Cross-Disciplinary Data Infrastructure for Science. Int. J. Digit. Curation 8, 279–287 (2013).

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Figure 45 - Growth in repository listings in re3data.org from August 2012 to March 2016

Repositories are arguably the most effective one to make data properly reusable by third parties, but it’s not the only way. Only about 15% of researchers use them to publish the data, according to the Elsevier report.457 Most researchers prefer to publish it as an appendix to a publication (33%) or in a stand-alone data publication (28%). However, researchers also value the possibility of sharing data on one to one relation, rather than openly for everyone to use. According to the Elsevier survey, “only 14% share data directly with researchers they do not know when they are working on a project”. This can be done as simply as via e-mail, but also through managed access platforms. For instance, the Wellcome trust is supporting the development of the platform www.clinicalstudydatarequest.com , where researchers can submit requests for data access of clinical trials, and the requests are assessed through an independent committee. Another consistent findings across studies is the huge differences between disciplines. As an example, from the study of Tenopir et al. (2011) of the respondents from atmospheric science, 90% report they can access third party data, Biology (85%), Medicine (65%), computer science/engineering (64%), and social sciences (58%) report the least amount of sharing. Similarly, the citations of data journals vary strongly by field, as reported in the figure below.

457 It is worth noting that this percentage reaches 30% for the study carried out by Figshare (a data repository itself).

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Figure 46 - Citations to data journals in different fields of science

Source: (Berghmans et al., 2017) On the other hand, researchers confirm their interest in reusing third party data. In Figshare report, 80% of researchers are willing to reuse data from others, and 50% actually do. According to Tenopir (2011), the majority of researchers (55%) are unhappy with their ability to reuse third party data. Data held by para-public bodies According to the rules set by Directive 2013/37/EU, public sector bodies (PSB) including the State, regional or local authorities, as well as “bodies governed by public law who are established for the specific purpose of meeting needs in the general interest” (Art. 2) have to enable access to their data and re-use. The concept of sharing public data could be further stretched to include data held by either the private sector or at least to data held by institutions characterised by some kind of public involvement, i.e. extending the scope of the Directive to entities under public control which execute tasks in the general interest or data which are generated as result of publicly- funded economic activities. These “para-public” – “para-publique” in French - bodies or, maybe more familiar, semi- state institutions or companies, are defined as organisations with some involvement of state activity either financially or in form of supervision. It could be argued that because of the societal value that could be created and because they are either financially sustained or

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carrying out public contracts (i.e. they are paid for their services by the government), para- public bodies might be included in a future revised PSI Directive. It may be suggested to define para-public bodies even more restrictively by referring to the EU sector procurement Directive, Directive 2014/25/EU, to especially unlock the data of all companies offering services of general economic interest (SGEI). In this case, para-public bodies could be defined as “contracting entities” in the meaning of Article 4: Contracting entities are, for example, public undertakings pursuing activities in the field of Gas and heat, Electricity, Water, Transport services, Ports and airports, Postal services, etc. or entities operating in this field on the basis of special or exclusive rights (legislative, regulatory or administrative provision to limit the exercise of activities to one or more entities). In this context, private companies could be defined as para-public bodies working in contractual relationships or concessions. Over several years, public-private entities are more and more fulfilling public (mostly infrastructure related) tasks in partnership between the state and private enterprises. They may be described even as public bodies if the majority of shares is held by private institutions or they might come across as public-private partnerships (PPP) in a variety of legal forms. As public financing faces more and more challenges of overspending, and (re)privatisation has been successfully proved to be a means to conquer difficult economic conditions and the associated structural crisis in the public sector, para-public bodies in different legal forms have emerged in many Member States over the last decades and especially in the field of SGEI. Historically, SGEI operators are legal entities which are underlying a strong regulatory approach. Examples are to be found in the area of infrastructure provision where ex-ante or ex-post regulations is established to enhance competition and reduce monopolistic or dominant positions in these sectors, e.g. transport (railways/local public transport), telecommunications, postal services, or energy. Often governments or public companies still hold large shares in these infrastructure companies, or these companies are working under concessions/contracts with PSB. Para-public bodies which hold partly tax-funded resources and data and partly privately and for-profit information are in the centre of conflicts between open data promotion and interests for business performance. This is particularly the case in the energy sector and transport sector because these data is of strategic public value and at the same time highly important for fostering innovations and developing unique services for the companies themselves. It is often claimed that these data should be treated as government data and are also subject to the requirements of the PSI Directive. In our research for this study, we collected evidence from the Member States on how stakeholders from the area of data generators, data holders and (re-)users assess the prospect of including these data in the PSI Directive and how para-public bodies might be already included in national open data strategies or even legislation. Our information collected from the Member States shows a mixed picture, mostly depending on whether there is considerable progress in developing a comprehensive open data strategy. France is the most progressive country in Europe when it comes to opening

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up data of para-public bodies. In its Law for Digital Republic of October 7th 2016, para-public bodies are covered by the open data by default regime. However, the full potential of open data has not been unlocked yet. There can be perceived some reluctance from big administrations and data producers (e.g. from the railway company SNCF, the local transport company RATP - Régie autonome des transports Parisiens, and the main energy supplier EDF - Électricité de France SA). Finland and Slovenia have already implemented provisions for para-public bodies in their relevant legislation, too. At the other end of the scale we found Italy, Poland, and Estonia which have not included provisions in their legislation. In other countries there is a lack of legislation and even companies own activities seem to be non-existent (Italy, Poland) or barely outlined, sometimes despite the huge progress towards a digital society (Estonia). Countries like Germany, Ireland, the Netherlands, and Sweden have no open data laws as regards para- public institutions but many individual activities and (commercial) projects for data sharing between data generators and re-users occur. For example, para-public bodies organise hackathons where developers find access to various open data sets for unlimited analysis and experiments, often resulting in products for the benefit of the para-public body itself, the re-users community, and the general public. Legislation and practice of accessibility to data from para-public bodies is characterized by company preferences, Member states open data strategies, and individual re-user activities. As a result, stakeholders of the re-user community require to avoid a situation in the EU whereby a different pace in dealing with data access and re-use happens and opportunities to develop cross-border applications are limited. Interviewed experts stress the fact that the potential of data-based solutions in utilities, especially energy and transport, is eminent and para-public bodies play an important role. Many of them also see insufficient progress in opening up data by the companies themselves and they stress the need to support re-users to identify and exploit considerable economic potential. In the energy sector, data458 held is mainly coming from consumers (private or business) and their smart meter on their premises. Other data is supplied by the operators themselves and their energy production plants. Important is the origin of the data. Consumption data belongs to the consumer and he decides how it is used. In the energy sector, there are three families of data:

 Smart meter data: kilowatt hour consumption is subject to privacy and data protection regulation. It is used for consumption monitoring and billing purposes. In aggregated form it is used for wholesale market planning.

458 As research shows, experts argue that the access to data is sufficiently regulated in the energy sector by the respective regulations. Access to Data of (para-) public companies or public data is not a topic in the experts´ discussions at the moment. The main question in the energy sector is the unbundling of energy suppliers from network operators, dependent on the ownerships (regulated company or private company, share of public authorities >50%) and increased transparency in retail markets to benefit consumers.

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 Market data: mainly aggregated, anonymized consumer data forms a basis for energy or non-energy services.  Grid data: Mix of kilowatt hour production and consumption data used for forecasting (planning the grid for operators, calculate the consumption). If renewable energy sources are used, weather data etc. is important for forecasting as well.459 Examples for re-use of energy data are performance and energy efficiency analysis, tracking residential usage patterns, energy consumption analysers, or smartphone apps designed to help consumers calculate, track and remotely control their energy usage. Energy operators are generally based on a core ownership of local authorities, and on the other hand, substantial shareholdings by private investors. These private investors’ interests could be severely influenced by changes to the access and (re-)use regulation of data. The discussion on “ownership” and control of consumption data which considered personal data has been even more controversial. The latest round of EU energy market legislation, known as the third package or “Clean Energy For All Europeans” – proposals,460 solved this problem by leaving the decision if and which data is given to service providers entirely to the consumer.461 One of the main aims in the energy market remains to drive digitalization forward to enable new energy technologies. Or, as the Impact Assessment of the regulation puts it “to fully benefit from the digitalisation of the electricity market we need a non-discriminatory data management framework that makes the right information immediately available to the right market actors, while at the same time ensuring a high level of data protection.”462 Some Member States have established data hubs to enable access to aggregated consumer and market data but this is handled completely different in each MS. Today, experts raise no immediate concerns about potential conflicts between the PSI Directive and energy regulation and advice to see the full effect of the new energy regulation come into effect before discussing amendments. However, stakeholders from the open energy data community claim that many problems remain unsolved, e.g. that the legal status of data sets as regards copyright remains unclear, that clarification is needed over the right to machine-process lawfully obtained copyright-

459 Weather data is covered by the INSPIRE Directive (Directive 2007/2/EC establishing and Infrastructure for Spatial Information in the European Community. 460 https://ec.europa.eu/energy/en/news/commission-proposes-new-rules-consumer-centred-clean-energy- transition 461 See https://ec.europa.eu/energy/en/topics/markets-and-consumers/market-legislation and the Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC. 462See https://ec.europa.eu/energy/sites/ener/files/documents/mdi_impact_asses sment_main_report_for_publication.pdf, Impact assessment, Accompanying the document Proposal for a Directive of the European Parliament and of the Council on common rules for the internal market in electricity (recast)2016, p. 5.

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protected datasets and also about re-publication of original, modified, or mixed datasets, as well as the right to archive. They also complain about the poor quality of data for modelling and analysis (despite mandatory transparency requirements. The same scenario is true for the transport sector. Recently, a thorough regulation of opening up datasets for re-uses has come into place but the effects cannot be measured yet and stakeholders complain about the poor data availability. In the transport sector, data is based on a variety of sources categorised in

 static data (i.e. data not changing on a regular basis), e.g. maps, safe and secure parking and safety related data, timetables, location data (of stations, routes, subway/railway lines etc.)  dynamic data (i.e. data changing on a regular basis), e.g. access and exchange of real- time traffic data In all Member States, data availability varies widely across the transport modes. There is almost no public transport system today without information on the internet or a mobile app, however, in most examples it is strictly limited to information about its own service. While examples of simple travel information applications are manifold, intermodal service examples are limited, especially as regards door-to-door travel applications (esp. when including indoor information of stations and other buildings). Positive examples are intermodal travel information systems like “Neemt je mee” (mobility app in the Netherlands)463 and Transport API, London, UK, which offers access to network data of Transport for London.464 To remove barriers for EU-wide multimodal travel information services for sustainable transport and for making efficient use of the road system, the ownership of companies has to be taken into account. Examples for semi-state companies are Córas Iompair Éireann (Irish Transport Company), a public-private partnership, Deutsche Bahn, partly private and partly public (network service), Transport for London (public) and many local transport services (public, private or on public service mission). Why and how these companies have to facilitate access to their data is subject to many controversial discussions between public authorities and the open data community. The revision of the ITS Directive465 is considered to be in line with the PSI Directive, however, it remains to be seen how a future PSI Directive will include semi-state organisations or organisations

463 See www.go-ov.nl, presented at the PSI group meeting, Luxemburg, 15. Nov 2017. The app with “Bring you home guarantee” and a Parent-app (monitoring) has presumably led to 84% people with mobility issues switching from taxi to public transport. 464 Transport for London is a public authority. The organization estimates innovative apps led to savings that amount to a total of GDP 150 Mio. 465 See for the Intelligent transport systems Action Plan and Directive https://ec.europa.eu/transport/themes/its/road/action_plan_en and Directive 2010/40/EU of the European Parliament and of the Council of 7 July 2010 on the framework for the deployment of Intelligent Transport Systems in the field of road transport and for interfaces with other modes of transport and Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2010/40/EU as regards the period for adopting delegated acts COM/2017/0136 final. A public consultation has been carried out from 05/05/2017 to 28/07/2017.

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fulfilling public assignments and how both Directives will lead to more accessibility of data in all Member States in future. The Intelligent Transport Systems (ITS) Directive and the recent Delegated Regulation466 which obliges both private and public entities to open up several datasets via National Access Points (NAP) allows for the provision of technical, functional and organisational specifications that can make “EU-wide multimodal travel information services accurate and available across borders to ITS users”. In particular, the Directive highlights a number of policy measures to support this objective, namely: the accessibility of information and data, facilitating electronic data exchange between stakeholders across borders, and timely updating of information. Moreover, it also identifies the need for equitable rights to access, use and present data. As stipulated in article 5 of the ITS Directive, such rules and provisions would only apply to a Member State when the ITS service and data already exists; there are no requirements to start collecting travel and traffic data in a machine readable format or to create a multimodal travel information service.467 The obligations for data access and re-use ITS Directive are in line with the PSI Directive today. The kind of data entities have to provide according to the Delegated Regulation may be defined by the Member States. Data may include static and dynamic travel and traffic data about transport operators, timetables, hours of operation, park & ride stops, bike sharing stations, fare products, real-time status information, etc. These are basically the types of data, third-party re-users require to develop new and innovative customer services, independent from modes, platforms, or operators. One stakeholder mentioned how the following data types and permissions as indispensable for new services:

 Core timetable data, including fastest journeys as well as slower (less expensive) journeys  Service information such as seat mapping  Real-time information, namely about delays  All types of fares, including the lowest fares  Rights to sell and issue tickets In the interviews for our study, we asked stakeholders from the transport sector and open data re-users about their view on the problems that could arise if para-public bodies are excluded from the in the PSI Directive obligations. There was a strong indication how including para-public bodies and entities working under public contracts could lead to more benefits by fostering the development of smart data innovations and to more competition.

466 Commission Delegated Regulation (EU) 2017/1926 of 31 May 2017 supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the provision of EU-wide multimodal travel information services 467 See TRL Limited (2016): Study on ITS Directive, Priority Action A: The Provision of EU-wide Multimodal Travel Information Services D5 Final Report, European Commission, Directorate-General Mobility and Transport, Under Framework Contract MOVE/C3/SER/2014-471, May 2016, p. 4.

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Excluding para-public bodies diminishes societal and economic benefit as developing customer-centric technologies and features independent from incumbents, other PSB, or contracted/under concession entities in the transport sectors would be very limited indeed. Charging provisions There are two main problems related to charging and pricing practices of public sector bodies vis-à-vis to PSI:

 There are uneven practices in terms of charging for data amongst public sector bodies within the same country and across Member States (although within the framework of what allowed by the PSI Directive);  Re-use of data is unequal or not ensured to all players due to the cost of data; Overall, the limited available evidence shows that, notwithstanding the common rules defined by the Directive, heterogeneous practices in terms of charging still exist between countries and within the same countries between public sector bodies. The evaluation (Section 4.3.2 Changes to the charging provisions) clearly illustrates these points:

 Across the EU, public organisations charge considerably different prices for a dataset with the same quality and type of data. With respect to AIS Marine Traffic data for instance, the European Countries show very different approaches in terms of charging and price. Some charges for the update of the data for instance while others do not. Some have prices lower than 1€ while other countries charge more than 18.000€. The charges linked to licensing also vary a significantly (see Table 12 - Overview of AIS Marine Traffic prices in Europe). The same variation in prices applies to geo-spatial data (e.g. these are provided for free in Germany since 2011 but in many other countries they are still charged for). Re-users from different countries complained about these different practices468.  Within Germany, public sector bodies apply different pricing strategies and have different maximum thresholds, from a maximum of 500 euro to a “no limit” maximum (see Table 13 - Charging thresholds for PSBs in Germany)469. Stakeholders in this country feel that it is not transparent how marginal costs are calculated. Some even believe that fee schedules are decided randomly, especially since they differ from Federal State to Federal State and from PSB to PSB470. Similarly, in Slovenia, it was mentioned that a major issue is that pricing policy differs greatly from one public body to another471. In addition, pricing strategies are not transparent and discriminate based on the technological parameters used for re-use. In Sweden, it emerged that PSBs apply different

468 See Country Factsheets on Sweden and the Netherlands 469 See Country Factsheet on Germany 470 See Country Factsheet on Germany 471 See Country Factsheet on Slovenia

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pricing strategies to different re-users of the same datasets and based on the technology adopted to re-use the data472. This diversity does not make life easier for re-users or potential re-users because it translates into higher information costs (and hence administrative burden) for them. Re-users explained that, especially in the case of cross- border services, dealing with different pricing approaches and rules is a real struggle473 and, when there are differentiated treatments between re-users, also unfair474. Therefore, the current charging provisions still allow a certain amount of differences in charging practices which have a significant impact on re-users in terms of administrative burden. Moreover, also due to this administrative burden as well as to the price of the data in certain cases, re-use of data is not ensured to all players to the same extent. Indeed, re- users benefiting from more availability of resources have a competitive edge in terms of provision of services based on PSI. Business registers are a good example of how price can prevent the access of smaller re- users to valuable data. The costs for having full access to business registers information in Belgium amount for 75.000 euro per year. Only two companies are actually buying and re- using these data and they have an interest in keeping the price this high as to have a barrier for new market entrants. Smaller re-users from other European countries offering services linked to business register data showed interest in re-using data from all EU business registers but are not in a position of buying them all, although in some countries they are now provided for free (e.g. in France). This means that they have to limit the geographical scope of their business and that they are unable to compete with larger players. Evidence from the Netherlands also shows that stakeholders often complain about the the existing exceptions to charging applied for Cadastre and Company Register which constitute a high barrier for re-use of high value datasets. At the same time, if data sets are commercially relevant, larger re-users even mentioned to be willing to pay more for validated and pre- checked data sets475. As this example illustrates, although in principle all players should be equally able to re-use data, the administrative burden of dealing with different charging practices and/or the costs of data itself have as a consequence a competitive advantage for certain players, which is not yet compensated by the existing remedies. Indeed, the Directive leaves enough marge of manoeuvre to the Member States to be able to a) establish national practices for charging and b) calculating different what marginal costs means in the context of the PSI Directive. The causes and effects of this situation are explored in the next sections.

472 See minutes of the High Level Round Table discussion on Public Sector Information re-use under the PSI Directive 473 See minutes of the High Level Round Table discussion on Public Sector Information re-use under the PSI Directive 474 See minutes of the High Level Round Table discussion on Public Sector Information re-use under the PSI Directive 475 See Country Factsheet on Germany

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APIs and dynamic data As often heard during interviews with re-users, technical barriers are not a big issue once you solve other problems such as para-public bodies, or charging for re-use. Nevertheless, data formats, data interoperability, access to dynamic data and APIs were often cited when asked what is preventing the creation of value from data, often with the complementary remark that, in the end, businesses will only operate with data providers and technologies they can trust. Overall, there is a need for the public sector to adapt to the way data is produced and consumed. The problem is that delivering data on the web is not a one size fits all solution and that it depends on both data infrastructures (the way data is produced and managed) and how those infrastructures respond to re-user needs (the way data is delivered and consumed online, or offline, by re-users within or outside of the administrations). While this section intends to focus on APIs and dynamic data, it seems useful to take a step back, and list what current and future technical problems may prevent impact from open data, and whether those are related to the availability of API and dynamic data, or whether these are technical problems on their own. Access to large datasets Depending on the capacities of data providers and re-users as well as connectivity between them, there are some datasets that may be too large to be downloaded as a whole (bulk download or data dump) in a reasonable time, or too large to be made available online as such. This might be the case for aerial imagery, weather data, or even business registers. As a result, data providers have been testing and implementing different solutions including restriction over the number of access at the same time. One example is Météo France, the French National Weather service which is limiting the number of parallel direct download by IPs for weather model data, but also offers a “Premium” service ensuring a better quality of service for those who subscribed to it.476 The problem is that organizations may not have the capacity to make such dataset available online or handle the demand, and in response will prefer not sharing it on the ground that it would involve disproportionate effort (Article 5.2 of the Directive), or restricting access through charging fee, with the consequence that only big businesses and organizations that have the capacity to pay for it will benefit. Access to data in real-time (dynamic data) Real-time data is data that is provided as soon as it is collected. With the advance of sensors and mobile technologies, there are now more and more data in transport, energy, environment and other sectors whose consumption is only relevant if provided in real or

476 See: https://donneespubliques.meteofrance.fr/

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near real-time (data used for navigation purposes for instance). In those cases, the required frequency of update will often be in hours, minutes, or even seconds.477 Access to data in almost real-time can also be of high value for datasets with a lower frequency of update. For instance, datasets that are updated on a daily or weekly basis, such as business or address registers. In those cases, re-users will also strongly favor instant access to data update. All those datasets can be classified as dynamic data (as opposed to static datasets that do not change over time, or with a frequency of update that is more than a Month). Often, the most efficient way to deliver dynamic data in real-time is through the use of APIs. The delivery of dynamic data is an important challenge for public bodies collecting that type of information as many of those are not adequately equipped. One energy operator that already provides data as open data stressed that if it had to release all its consumption data in real or near-real time data, every 30 minutes or day instead of every month, this would require an important investment. On the other hand, re-users are getting used to accessing and benefiting from data in real- time and are asking for public services to adapt. Access to quality data One 2016 survey estimated that data scientists spend around 60% of their time cleaning and reorganizing data, and another 20% collecting data, rather than creating value from the data itself.478 Data cleaning can take different forms, but will often involve detecting and correcting corrupt or inaccurate records from a dataset, and validating or modifying value against a known list of entities or other datasets (reference data). Data quality is regarded by interviewees as one of the main barriers to open data once legal and economic barriers have been removed, and is often associated with the need of open data standards. Bad quality data favors businesses and organizations that have the capacity, resources or infrastructures to spend time on data cleaning. In the opposite, better quality of data may enable companies to spend more time on their core business, innovation or drive market growth. Use of open standards for data and metadata Data standards can be defined as shared vocabularies (common models, code lists, attributes and definitions) as well as data exchange formats that define how data is serialized and published. Open standards usually mean standards whose specifications are made accessible to all for implementation and deployment, but also whose design and

477 For data whose frequency of update is higher than a second, we may refer to high-frequency data. 478 See: Data Science Report, CrowdFlower, 2016, http://visit.crowdflower.com/rs/416-ZBE- 142/images/CrowdFlower_DataScienceReport_2016.pdf

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development follows a transparent and collaborative process.479 The use of data standards is one of the most efficient ways of enhancing data quality and enabling interoperability. In its Article 5, the PSI Directive states that both the format and the metadata should, in so far as possible, comply with open standards. However, as reported through interviews, the implementation of data standards for open data is often very limited and standards themselves are insufficiently available. The situation is, however, getting better in the provision of metadata thanks notably to the use of open data catalogs and their compliance with DCAT metadata standard. Use of open identifiers Related to data standards is the use of identifiers. Identifiers are labels used to refer to an object, such as products, companies or people in the dataset. They are critical in data management as they enable to make sure all producers and re-users refer to the same thing. The issue is that identifiers are easier to handle in closed systems, where there are no linkages with external pieces of information, the opposite of what is required to conduct scientific research, innovation or business at a large scale. This problem becomes of high relevance when it comes to open data in the European single market context. In the opposite, well managed open identifiers (data identifiers available to anyone) can have an important impact on businesses that adopt them. For example, by adopting the open music encyclopedia, MusicBrainz, the BBC saves money overall by redirecting the efforts it would have to take in managing its own identifier scheme towards enhancing an open one. MusicBrainz is also used by Spotify, a popular Sweden based music streaming service. 480 The use of identifiers is also critical to research and innovation processes, as it facilitates data mining, meta-analysis (analysis of different sources of data), and reduce the risk of errors due to bad data.481 Access to crowdsourced data Crowdsourced data are data collected thanks to the contribution of a large group of contributors, either on a voluntary basis (Open Street Map, a crowdsourced map of the world), against a service (crowdsourced navigation GPS service), or even against a small income (through crowdsourcing marketplaces). Crowdsourced data are becoming more and more popular, in particular when filling a data gap or enabling better services.

479 See: Documenting the development of open standards for data, Open Data Insitute, January 2018, https://theodi.org/blog/documenting-the-development-of-open-standards-for-data 480 See: White paper: Creating Value with identifiers in an Open Data World, Open Data Institute and Thomson Reuters, May 2016, https://innovation.thomsonreuters.com/content/dam/openweb/documents/pdf/corporate/Reports/creating- value-with-identifiers-in-an-open-data-world.pdf 481 See: Bad Identifiers are the Potholes of the Information Superhighway: Take-Home Lessons for Researchers, PLOS, July 2017, http://blogs.plos.org/biologue/2017/07/06/bad-identifiers-potholes-of-information- superhighway/

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The problem is that the public sector may have a tendency to see crowdsourced data as an unreliable source of information, or a competitor, and often does not see the value it may bring to its own public services and to the general public. On the other hand, when not made available online, crowdsourced data can create new data silos, from which public sector and re-users can become dependent on (partnerships between public bodies and private crowdsourced data providers for the provision of public services). This issue is, however, not exclusive to crowdsourced data. Access to data through API As seen, the lack of open data API (API used to consume open data) is preventing the re-use of large datasets and dynamic data, which are among the most needed data. Data API can also significantly improve data quality as it will often require to conduct more data cleaning beforehand and implement some standards. Re-users also noted the lack of unique data access point for specific information, either at national level or when this is possible at EU level. Improved interoperability, through the adoption of standards, will facilitate the implementation of unique data access point, in particular through API.

How France is revolutionizing its Address Register through APIs The French National Address Register (BAN) is a national database including more than 25 million postal addresses and their geolocation in France. The database is a partnership between: * National Institute for Geographic and Forest Information (IGN); * La Poste (state owned postal service company); * OpenStreetMap France (French association); * Etalab (French Open Data Taskforce). The partnership was signed on April 15, 2015 and the database is available as open data under the French Open License. This data makes it possible to perform geocoding, reverse geocoding, as well as verify the existence of an address. It is part of the high-value datasets from the Service Public de la Donnée (Public Service of Data) introduced by the French Law for a Digital Republic. The database integrates and facilitate the once-only principle for address data. Since the launch of the project, there has been a dramatic increase of data re-use in particular from the public geocoding API (adresse.data.gouv.fr/api) with more than 1 billion hits in 2017 against 440 million hits in 2016 and 5000 downloads of the whole territory. Among the main re-users of the geocoding API are French eCommerce websites and supermarkets. The geocoding API is not a data API in the sense it does not enable to consume or give access to the full dataset, but rather provides a service on top of the data enabling to look for a geolocation from an address or the opposite, look for an address from a geolocation. The use of the API is currently free of charge and the code is open source. Lastly, the address register will be soon equipped with a collaborative data management

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tool, available as an API. This tool will enable to validate, correct and update data online. Currently, apart from key LaPoste and IGN, only municipalities can contribute directly through a specific website. The idea with the API is that any potential contributor (emergency services, private company, etc.) will be able to contribute directly from its own IT system. Data validation will be conducted through digital stamps: when one of the partners consider a data is correct, he can put a stamp on it. The tool is being developed with inspiration from crowdsourcing platforms such as OpenStreetMap with the principle that many can contribute but any modification is tracked and reversible. Historically, public data providers tend to do the opposite: only a few selected contributors. Exclusive agreements As illustrated in the evaluation of the Directive, cases of contractual or de facto exclusive agreements in Europe exist (see Section 4.1.3 on Error! Reference source not found.) lthough they are not extremely frequent. According to the analysis of these cases, two main problems related to exclusive agreements could be identified:

 Businesses face undue barriers for competition  Citizens and consumers pay undue prices From the businesses perspective, the issues related to contractual exclusive agreements are well understood by policy makers and the Directive already limits the possibility for PSBs to conclude such kind of agreements which have negative effects on the Digital Single Market overall. According to the current legislation, exclusive agreements have to be limited in scope and time and also clearly justified. Hence, although PSBs have a marge of manoeuvre in this respect, this practice is already legally framed under the Directive. “De facto” exclusive agreements or exclusive agreement which are reached in the framework of public private partnerships on the other hand are not currently mentioned under the PSI rules. The first are situations in which, although there is no formal (contractual) agreement, only a very limited number of players can re-use certain datasets (due to access barriers of different kinds). The second on the other hand are a consequence of public authorities collaborating with private parties for a number of different reasons and tasks. The emergence of these types of exclusive agreements and the evidence derived from the available data suggests that, despite the existing rules, exclusive agreements are still a barrier for the development of a true PSI market in Europe and, as barrier to competition, should be further addressed. Examples show that this practice, although phasing out in certain domains (such as in the area of digitisation of cultural heritage) is growing in others and especially with respect to smart cities. Smart cities projects in fact more and more rely on structured forms of public private collaborations which often entail an advantage for the private party involved in the exploitation of the data (see the case of DeepMind and the NHS data). It must be noted that the advantage given to the private party can be understood as a form of compensation and might be justifiable in terms of public interest. However, this de facto advantage also constitutes a situation in which public sector information are re-usable only by one player, hence contradicting the spirit of the PSI Directive. Sometimes, as explained in the evaluation part of this report, exclusive agreements do not come from a conscious choice of the PSB but are rather consequence of

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other conditions linked to the data (e.g. its cost, the fact that documents are paper-based etc.). Notwithstanding the nature of these agreements and willingness (or lack of thereof) of PSB to establish them, re-users from different sectors complained about them clearly mentioning that they provide unjustified competitive advantages to some players while hampering all others482. Therefore, a market failure exists as exclusive agreements have direct effect on the capacity of all players to compete on equal footing. Furthermore, citizens and consumers might also pay the price of exclusive agreements. Indeed, in the case of smart cities, if one party only has the monopoly on the exploitation of, for instance, parking data, this means that freedom of choice for citizens and consumers is reduced. They would have indeed a limited number of products and services linked to parking amongst which they can choose from and the “de facto” monopoly situation will entail higher prices. This can happen also in case of non-voluntary exclusive agreements: the fact that Belgian business register data are re-used by two players only implies that businesses willing to buy services based on these data have a limited choice of providers. Additionally, if the PSB itself does not have possibility to re-use data that are collected under a smart city collaborative project, citizens will not be able to benefit entirely from public action. From this perspective, the debate around exclusive agreements must also be seen also in relation with the debate on data held by para-public bodies. Therefore, although the number of exclusive agreements is declining with respect to cultural data at least, there are a number of new areas in which problems linked to competition and consumer choice are growing and to which the Directive does not refer specifically. Assessment of the causes of the problems This section describes the causes of the problems identified in the previous analysis with respect to research data, data held by para-public bodies, charging provisions and APIs and dynamic data. Research data The barriers to research data sharing are well recognized. Surveys and consultations are consistent in identifying as main barrier the current research assessment framework, which values the publication of articles but no other forms of outputs – the so-called Non Traditional Research Outputs (NTROs). To put it simply, until research careers will be determined by the “publish or perish” principle, it is a logical choice for researchers not to share data. While there is consensus on the limitations of the present emphasis on “impact factor” as main assessment criterion for research, an alternative assessment framework has not yet been established. Many different proposals exist for a more multidimensional assessment, as it is recognized in the “San Francisco Declaration on Research Assessment”. In fact, neither the proliferation of more flexible, article-based ways to assess research (EigenFactor, h-factor) nor the emergence of non-article output based instruments (such as

482 See Country Factsheet on Sweden

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data citation index and altmetrics) have become common enough to start changing the behaviour of scientists. In fact, the lack of attribution and recognition for releasing data and code are one of the barriers most frequently mentioned by scientists (Szkuta & Osimo, 2016). The continuous and increasing trend towards competitive funding instruments and the emphasis on “impact factor” as key performance indicators are obviously not playing in favour of increasing collaboration and openness. It is worth asking if it is reasonable to expect researchers to generously open up their data and notebooks, while at the same time forcing them to compete harshly for their career progress. One issue that emerges clearly in recent surveys is that funders’, institutional and journal mandates do not play a prominent role in inducing researchers to share data. Instead, it appears that researchers are far more sensitive to internal “community” factors, such as increased visibility and appreciation by their peers.

Figure 47 - Main reasons for sharing data

Source: Figshare 2017 One reason for this apparent lack of importance of external factors is that often the mandates are not enforced. For instance, 44% of respondents of the FIgshare survey declare that they have an institutional mandate but it is not enforced, although it appears that there is an increasing trend towards enforcement.483 Another frequently mentioned barrier is uncertainty over the ownership of the data. Many researchers are uncertain over who owns the data – the most frequently mentioned

483 https://figshare.com/blog/2015_The_year_of_open_data_mandates/143

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answers is the researcher, the institutions, and colleagues (both in Elsevier and Figshare surveys). There is lack of awareness and uncertainty over the licensing practices. In the Figshare survey, over one third of respondents report to be unsure about the license to be used (and more than 60% in the Elsevier survey). This is not just a perception problem, but an actual issue reflecting the diversity and inconsistency of the licensing system which is not universally oriented toward favouring reuse. A recent assessment of curated data resources shows clearly that accessibility per se is not the main problem, but rather about clarity and restrictions to reuse. As the chart shows, more than half of the resources have violations related to these issues.

Figure 48 - Assessment of licenses in curated data resources

Source: reusabledata.org Another frequently mentioned issue is the cost of preparing the data. Researchers are concerned about “the time sink that is involved in preparing data for others to view. Once the data and associated materials appear in a repository, answering questions and handling complaints can take many hours.”484 Many funders today recognize data preparation as an eligible expense, but researchers report that the work remain substantial and more than one third of researchers are not aware of how this work can be covered (Figshare 2017). In summary, because of the nature of the scientific process, the barriers and the incentives are more related to the appreciation of their peers than to pressure from external players.

484 Gewin, V. (2016). Data sharing: An open mind on open data. Nature, 529(7584), 117–119. http://doi.org/10.1038/nj7584-117a

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Data held by para-public bodies Whereas data held by public bodies remains in the area of the PSI Directive and has to be made available by default, data held by para-public bodies is excluded from any open data policy. For practical reasons, and for promoting innovation and continued growth, excluding para- public bodies seems to prove counter-productive. As mentioned above, data collected and stored by energy operators or transport companies are particularly valuable for data-based applications, for example apps for measuring energy consumption to cut energy consumption and costs, managing appliances via energy universal remotes, automated home energy management systems, mobility apps for car sharing, public transport, door-to- door navigation, etc. In order to benefit from this data treasure, the use of different data sources seems indispensable and access to not only public data but also para-public data sources is inevitable. For the review and impact assessment of the PSI Directive, we looked at main potential barriers for the use of data held by para-public bodies. Firstly, we considered potential legal barriers, i.e. the specific legal protection of those entities today. Secondly, we examined potential economic barriers, i.e. obstacles related to ensure the business models and sustainably successful business activities for these companies, and thirdly, we describe main technical obstructions for an open data policy. Potential legal barriers Some potential legal barriers have already been removed in the respective sector regulations. For the transport sector, the Delegated Regulation 2014/1926 requires to build National Access Points (NAPs) within Member States to facilitate access to core data across different transport modes. In the energy sector, basic regulations about who decides about access to data have been established. However, in both sectors re-users and other stakeholders complain about slow progress and insufficient clarity about the exact terms of re-use. The reasons PSB and also para-public bodies put forward for not sharing data are often related to potential legal barriers and liability risks. According to stakeholders, main reasons given for not sharing data include trade secrets, copyright (including rights as regards databases), data protection issues as well as safety and security risks and the related liability and responsibility issues. However, these legal issues are already considered in the current PSI Directive and protect public sector bodies’ activities. As laid down in private contracts and also in employment relations, all operational and business information is confidential and may not be disclosed to any unauthorized third parties. If para-public bodies would be included in the PSI Directive, their trade secrets would probably not be affected. Para-public bodies also have to make sure about the consent of the contracting PSB before they make data accessible.

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Public sector bodies involved in financial or organisational connections with a para-public service provider could limit their (re-)use of data by exercising copyright and, in particular, database rights or, in the absence of these rights, rely on contractual means disallowing re- use. In effect, even if para-public bodies would like to give access to data for their own benefit it remains to be seen if the contractual relationship would allow it. Another exemption defined in the PSI Directive applies when the supply of documents constitutes an activity falling outside the scope of the public task of the public sector bodies concerned, as defined by law or by other binding rules in the Member State, or in the absence of such rules, as defined in line with common administrative practice in the Member State in question. This is not surprising, but it does create risks both if public sector tasks are entrusted to (semi-)private entities (rather than public sector bodies), or inversely if a public sector body produces data through actions that are not labelled as a part of its public tasks. Then, the PSI Directive will not apply. In addition, energy and transport are classified as critical infrastructure with certain obligations for ensuring safety and security. Protection of the general public and of passengers and other service customers, protection of persons, environment and property in the event of disasters and technological failures, or even terrorist attacks, is another reason for caution and restraint. From the view of PSB and para-public bodies, a clear guidance on open data policies seems indispensable to mitigate liability issues. As some interview partners stated, para-public bodies will not follow an open data policy if their compliance with contracts and concessions remains unclear. A change of the PSI Directive might give Member States as well as PSB as contracting entities more legal security and a “push” towards an open data strategy. Potential economic barriers New entrants in the public transport market criticise “digital protectionism” of incumbents and other actors with significant market power. Access to data assets is an issue in the context of developing products and services. There seems to be hardly any changes yet despite the new ITS regulation. However, in some Member States, the situation for new services has been said to have improved due to a more competitive environment (for example, in the Italian railway market). In competitive and deregulated markets, one-stop shops for travel services or energy managing applications are more likely to occur. Incumbents would like to see their investments in digitisation and their data analysis for own internal purposes protected. This is also true for private operators who claim that they made high investments in their operations and digital processing and that these commercial interests have to be safeguarded. These companies want to protect their strategic and commercially sensitive data and gain profits from own data analyses. They are reluctant to unveil know-how to less modernized and digitized competitors (especially incumbents with IT legacies) who would in their view benefit from free data resources at the expense of SGEI operators. Against the background of different IT development stages of public and private operators, for example in the public transport

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sector, same obligations for public and private operators will not lead to a level playing field as regards transparency. Some stakeholders also fear that the main beneficiaries of open data will be big platforms outside the EU (Facebook, Google) and in this case they expect no reciprocity in access to data. Para-public bodies, as PSB in general, also have to bear the costs of increasing their IT system capacities if data access becomes mandatory. They see this as another substantial cost barrier and expect at least that the choice of license must remain free and that charging for re-use has to be possible. Against the background of the various economic barriers and the potential costs for para- public bodies, re-users do not expect strong voluntary actions to establish extensive open data strategies in future. It seems not likely that markets emerge without at least guidance or even regulation in this field. Potential technical barriers Technical barriers are especially relevant in the transport sector because sources of data from different transport modes are available in different formats and via different APIs. In interviews carried out stakeholders highlighted how on the one hand access to data is important for re-users via APIs to create new applications. One successful example is Transport API485 in UK with data accessible via JSON API and open content with no copyright restrictions and a freemium business model (threshold for free data queries per month). On the other hand, data should be additionally available via file formats like, for example, .csv as many re-users aim to integrate data in their website or use it just for information and not service development. All in all, technical barriers as regards the use of data from para-public bodies seem not be different from overall barriers to data accessibility. Interview partners mentioned insufficient availability of raw data, dynamic data, and APIs. Para-public bodies interviewed claim to have invested more in technology already than PSB or incumbents in the transport or energy sector. Some are afraid that their data readiness and technical leading position could turn into a disadvantage if data sharing becomes compulsory. Charging provisions A number of drivers results in the problems examined above with respect to charging and pricing of PSI. Some of these relate to legal barriers while others belong to the realm of economic and financial barriers. Finally, some limited social or cultural barriers can also be identified at this stage. In terms of legal barriers, the biggest obstacle concerns the coherence and consistency of the national criteria for charging (see also the legal analysis of the implementation of the

485 https://www.transportapi.com/

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Directive). Although not all Member States have already published these guidelines486, stakeholders have already expressed their fears that too diverging rules (for instance in the definition of what is a legitimate return on investment for certain institutions) could hamper the provision of cross-border services based on PSI and also give competitive advantages to certain players within the DSM. Indeed, as also discussed in the previous section, the more the national rules are diverse and the more prices vary for the same type of data, the more difficult it becomes for smaller players to jungle with this uneven situation. Bigger players and companies will therefore have an advantage as they will have more resources for both understandings the legal requirement and acquiring data at a higher price. They also have stronger possibility to challenge justifications for the charges and bring public sector bodies to court. As mentioned by a re-user in fact, in Austria the redress procedure could cost up to 100.000 euro of legal expenses (mainly the payment of lawyers) due to the fact that the negative decision of the PSB can only be challenged in civil court. Re-users have to bear these legal costs without certainty on whether they will finally win the access to the data or not. As also explained in the evaluation sections, there is hence a real risk of divergence between Member States in this respect or whether in practice this will not constitute a big barrier for PSI re-use. Besides legal causes, economic and financial factors are the most important elements influencing the problems related to charging for PSI. It is worth reminding here that it is commonly believed that “financing appears to be a main obstacle to change” when it comes to providing data for re-use for free or at a marginal cost487. This is due to a) the fact that a number of PSBs having the obligation of financing itself exists (and has been put even more under pressure in terms of availability of resources by the recent economic crisis) although this is not the majority of public bodies in Europe and b) that the rules of the PSI Directive allow for a number of exceptions to the marginal cost principle that should be the baseline. For bodies and data benefitting from the exceptions laid down in the Directive, (and especially for cultural institutions) there are, at the moment, limited incentives to lower prices to the marginal costs or below. Even when the political willingness to charge at the marginal costs or below is there, the discussion on how to replace the funding obtained through charging is still not simple. Section 2.3.3 on the evaluation of the charging provision mentions that, even when the revenue generated by the data is limited if compared to the overall institutions’ budgets, replacing this funding with public funding entails a political decision over distribution of resources and this is not made easier by the fact that costs are concentrated on one

486 For instance Croatia is still developing them, see Minutes of the Member States PSI working group, November the 10th, 2017 487 See : European Public Sector Information Platform Topic Report No. 2012 / 9, Charging for PSI re-use a snap shot of the state of affairs in Europe, Marc de Vries, https://www.europeandataportal.eu/sites/default/files/2012_charging_for_psi_re_use.pdf

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institution but benefits are spread across society488. Cultural elements also enter into play in this decision (see below) as policy-makers might be reticent to substitute private funding with tax-payers’ money. Moreover, in the case of cultural institutions, there is a fear of decreasing the number of physical visitors if the cultural data are provided for free or almost489. All these economic factors and financial constraints might have a negative effect on the approaches adopted by PSBs on charging although within the legal limits imposed by the PSI Directive. A fourth element to consider is the lack of skills, especially in smaller administrations, with regards to the capacity attributing the correct price to data and to understand the overall legal context of the PSI. As also underlined by the Study on emerging issues of data ownership, interoperability, (re-)usability and access to data, and liability, basic “pricing” skills still lack in the private sector490. Most likely, this is the case also in the public sector and especially for those PSBs which have limited experience with opening up data or which face challenges in terms of availability of financial and human resources. Indeed, it must be noted here that the PSI Directive applies to all public bodies in Europe, including local and municipal levels. While cities are sometimes the most advanced players in the open data economy, this cannot be taken as a rule and especially smaller municipalities might struggle to a) interpret the PSI rules on charging and b) applying them and calculate legitimate price of data (when relevant)491. Finally, from a cultural perspective, there are some arguments that sometimes public sector bodies use to justify charging beyond what foreseen by the PSI Directive. For instance, one of the interviewed stakeholders argued that “giving up public assets (data) for free is not in the interest of the society and of citizens”492. Moreover, as another interviewee put it: “why should tax-payers bear the costs of making data re-usable for private companies that will make profit out of it? These companies should pay themselves for any costs linked to the data offering from the public sector otherwise it seems to be that tax-payers pay twice: to make the data re-usable and to access to the private service based on them”493. Therefore, besides the abovementioned legal and economic barriers, a cultural reticence towards provision of data for free or at the marginal cost remains within public administrations and is a cause of uneven practices and uneven re-use of data. APIs and dynamic data In the assessments of the problems related to data APIs and dynamic data, we identified

 In general, there is a lack of awareness from administrations, in particular small ones, in how data is technically delivered and re-used on the web;

488 See Minutes of the Member States PSI working group, November the 10th, 2017 489 Strategic interview 490 Study on emerging issues of data ownership, interoperability, (re-)usability and access to data, and liability, SMART 2016/0030, 2017, Unpublished document 491 Strategic interviews 492 Strategic interviews 493 Strategic interviews

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 Software used by public bodies to collect and manage data have not been designed to deliver data on the web, in particular through APIs;  The dissemination of large datasets or dynamic data in real-time, through the Internet, requires higher capacity in data hosting and data processing for the data provider, as well as higher network capacities to deliver the data online. This has a cost that directly depends on the demand;  There is a lack of resources and cross-support to design, maintain and promote APIs and underlying data standards;  There is a lack of common data infrastructures to foster the implementation of those technologies. Exclusive agreements There are three different types of causes that explain why exclusive agreements lead to issues in terms of competition and consumer choice. The first type includes financial barriers. Normally, exclusive agreements are ways for the PSBs concerned to invest into new initiatives/digitisation projects for which there is not sufficient public funding or expertise available. In these cases, the exclusive exploitation of the data attributed to a private player is, at the same time, a compensation and an incentive for businesses to collaborate with the public sector on a project which is beneficial for the entire society. Due to the purpose of these agreements, it is difficult to draw a balance and identify clearly when the exclusive agreement is unjustified and when, despite short term drains in terms of competition for instance, the project will compensate with greater benefits for society on the longer term. Different stakeholders have different perceptions on this balance: PSBs (when aware of this tension) and all other potential re-users of the data believe that exclusive exploitation of data is very rarely justified. Businesses entering into exclusive agreements on the other hand tend to say that this advantage in exploitation of data is an essential incentive for private sector to invest into projects in which otherwise it would have not invested at all. Stakeholders also mentioned that, under the PSI Directive, exclusive agreements are anyway limited to 10 years: therefore, on the long term and when the private partner has recovered the costs of its investment both PSBs and other re-users will benefit from the data. The financial barrier underlying the problem discussed in the previous section is linked to this debate and to the difficulty of drawing a line between short term and long term societal interests but also between costs and benefits of public private collaboration. To this barrier, one should add the issues related to a) the lack of awareness and skills within the public sector in the area of exclusive agreements and b) the difficulty in establishing clear and future oriented clauses in contractual agreements. With respect to the lack of awareness, it was mentioned during the data collection that, when for instance negotiating the start of a public-private project for digitisation or of a smart city initiative, public officials are not always trained enough to understand and identify all risks related to the exploitation of data. It might happen that this aspect, although crucial, is not rightly addressed by the contract and that an exclusive agreements for data exploitation passed

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almost unnoticed. Furthermore, even in cases where there is such an awareness and attention to data, when contracts are old and/or concern new topics, it is also very difficult to establish clear and future oriented rules that will apply to all data gathered in the course of the initiative. Indeed, it is not uncommon for PSBs to find them stuck in contracts which do not reflect anymore their needs in terms of exploitation of data. Hence, the difficulties linked to drawing a balance between public private and short-term and long-term interests, the lack of awareness and the contractual issues linked to data management all result in problems for competition and consumers. Assessment of the effects of the problems This section is devoted to the effects of the abovementioned problems at the more general EU level, e.g. with regard to the functioning of the Digital Single Market (innovativeness, competition), as well as any Fundamental Rights issues. Research data There is substantial evidence that data sharing is correlated with better science, mainly by removing mistakes at an earlier stage, enhancing the productivity of science through data reuse, reducing the costs of science through collaboration. The main different positive effects of implementing an open science approach captured in the literature so far are:

Table 25 - Overview of positive impact of data sharing on science

Faster discovery Fast track to discovery thanks to external contributions and comments. Bradley estimates that we can cut down the time it takes to go from lab to medicine by 10-15 years with Open Notebook Science (http://www.makeuseof.com/tag/started-open- notebook-science) Robinson et al. (2010) applied Big Data to brain science, allowing researchers to detect microscopic lesions related to neurological diseases such as schizophrenia (Liu et al, 2008), multiple sclerosis (He et al, 2009) and Alzheimers (Supekar et al, 2008). Knowledge mining of Open access literature can automatically classify, analyse and reason on existing literature, making new discoveries and connections that now happen very seldom and unexpectedly.

Increased efficiency Open Science increases the efficiency of the research system because it helps to reduce the duplication of costs, as well as costs stemming from the creation, transfer and re-use of data. It allows more research to be borne by the same data and thus boosts returns on publicly funded research (OECD, 2015; Lyon, 2009; Whyte & Pryor, 2010).

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Greater productivity Galaxy Zoo project: in less than a year (April 2008) with 100,000 volunteers had classified each of the 900,000 SDSS galaxy images an average of 38 times. Piwowar, Vision, & Whitlock (2011) estimated, based on Gene Expression Omnibus (GEO) database at the US National Center for Biotechnology Information, that the GEO 2007 data-sets made third- party contributions to more than 1,150 published articles by the end of 2010.

More robust findings Willingness to share research data is related to the strength of the evidence and the quality of reporting of statistical results (Wicherts et al., 2011). In the absence of open code, computational science as practiced today does not generate reliable knowledge but “breezy demos” (Ioannidis 2005).

Increased Open Science raises transparency and quality in the validation of transparency and research results and multiplies the opportunities for replicability and replication of studies validation of scientific findings (Franceschet & Constantini, 2010; OECD, 2015; Fecher et al. 2015). By making information on methods, protocols, and data easier to peer review, and by strengthening the scope of the material published (including negative results), OS offers greater scrutiny as it allows for more accurate verification of research results (Lyon, 2009; Whyte & Pryor, 2010).

Increased The implementation of an open approach in Science enhances collaboration and collaboration across institutional, national and disciplinary scientific inter- boundaries, and it fosters the sharing of information and expert disciplinarily knowledge (OECD, 2015; Whyte & Pryor, 2010). With the rapid spread of Web 2.0, scientists are re-scaling the level of contribution in the scientific process by cutting it into small pieces and enabling micro-contributions on a macro-scale. Hyper-specialisation is foreseen by scientists in many cases and they look for micro- contributions from ‘citizen scientists’, which could lead to a further gamification of Science (Von Ahn & Dabbish, 2008; Szkuta & Osimo, 2016).

Minimise publication Minimise publication biases if studies that report negative or no biases effects are not published in traditional venues but are more likely to be published on novel publication platforms (Boulton et al., 2012)

New research fields Big Data leads to brand new fields of science being created:

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and enhanced computational chemistry, biology, economics, engineering, opportunities mechanics, neuroscience, and geophysics. Open Science enables sharing of complex models and simulations based on large-scale Open Data analysis (Lyon, 2009; Boulton et al., 2012). Modern computers can identify highly complex, unperceived relationships. Thus technology is not only supporting traditional ways of doing Science but is helping to conduct enquiry by constructing hypotheses after identifying relationships in the datasets, thanks to the immense data-sorting and analysis capacities of computers. Furthermore, the increasing availability of computer power is driving mathematical modelling to ever-greater heights, enabling scientists to carry out simulations that can assess the behaviour of fiendishly complex systems. Furthermore, by open sharing of experimental methods and data results, OS enhances opportunities for student learning (Lyon, 2009)

New emerging Since the last ten years with the adoption of web 2.0 tools by instruments to scientists, new instruments are emerging to assess the quality of evaluate science Science outputs (Herman et al., 2015). Today reputation (which is key to scholarly research) is intrinsically linked to the model of journal publication. The impact of research is measured by citations and patents. Recently, there have been experiments with new evaluation and reputation models, such as data citation and data journals, altmetrics and post-publication reviews (Szkuta and Osimo, 2016).

Increased innovation Greater access to research data for reuse by companies paves the way to developing new products and services. For instance, the open access to genome sequencing data enabled the flourishing of a whole range of products and services that ultimately lowered the price of DNA sequencing from 100 million to 5 thousand dollars between 2001 and 2013.494

Regarding the potential negative impacts, the literature suggests that Open Science may also pose various threats. Most of the concerns are related to research quality: With the openness of the research process there are some concerns about the effectiveness and practicality of quality checks. There is a widespread acknowledgement that assessing the quality of such vast volumes and ranges of scientific materials is challenging (Whyte & Pryor, 2010).

494 E. Hayden, Technology: The $1,000 genome”. Nature 507, 294–295 (20 March 2014)

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Data held by para-public bodies In the study, we examined negative consequences of not including para-public bodies and its data sources in a revised PSI Directive. We also took into consideration, how a stricter regulation might interfere with existing voluntary initiatives and intrinsic motivation to open up data sources for (re-)use in a semi-state environment. Negative consequences of limiting access obligations to public service providers in the transport and energy sector include

 Less choices for consumers: less options for intermodal travel services, less options for energy control and savings, i.e. not exploiting the maximum potential of data for apps for people with reduced mobility (throw away chances in an overall aging society for more cost-effective mobility)  Innovation not reaching its full potential: preventing research institutions and start- ups from developing new applications and from exploiting unknown potential of big data analytics combining different data sources.  Economic growth in the Digital Single Market slowed down: as a result, investments are hindered and the economic growth in future markets in and across Member States gets limited. Data providers like telecommunications service providers or Social media platforms like Facebook or Google might close the innovation gap by using crowdsourced data bases. Thus, existing data sources in the energy and transport sector become depreciated assets. On the other hand, during our research we found numerous examples of positive effects due to voluntary efforts to open up datasets for re-users. Even though quantitative information is scarce, the examples are important indicators for enhanced consumer choice, economic growth, and also benefits for the companies. The following examples are based on the analysis of the public consultation and on stakeholder interviews conducted by the study consortium in Member States. They provide insights on the positive effects if para- public bodies in the transport and energy sector would be included in the PSI Directive: For example, in France ENEDIS, a para-public body in the energy sector has adopted an open data strategy in February 2015, before the transposition of the 2013 PSI Directive in French Law. ENEDIS considers open data as a way to be more transparent, improve collaboration with partners and clients (in particular in local territories) and improve its feedback loops on energy supply and consumption. The French Digital Law applies to para-public bodies such as ENEDIS who, according to our research, considered the cost to implement the obligations as acceptable. In Germany, the railway company Deutsche Bahn has initiated several challenges and developer programmes. Open data for free use is provided via a website. Many applications have emerged from this initiative which are also beneficial for railway companies’ use. Data include e.g. Rail network DB, Station data(Addresses, GPS plus various additional information as length of platforms etc.), Opening times travel centres, operations location register, Service facilities, booking data from Call-a-bike and Flinkster, Network

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radar, Air pollutant register/cadaster, exemplary shipment data, Data from DB Cargo (Aggregated à 10 trains per operating location per day), Target timetable long distance trains, and also Real-time-APIs on DB Open Data (Condition of elevators and escalators (works/not working), Actual occupancy of DB Bahnpark car parks, etc. In Ireland major actors in the transport sector such as the National transport system provider are also already part of the open data strategy of the government. For instance, the “National Transport Authority (NTA) ‘National Journey Planner’ provides open data on journey planning, timetable and travel information from all licensed public transport providers across Ireland, including information on train, bus, tram, ferry and taxi services. The Planner provides public transport departure times and allows whole journey planning including Walk, Bus, Luas, Irish Rail and ferry times. This open data has facilitated third parties such as Google Maps, Bing Maps, Yahoo Maps and HERE in building a public transport planner in their products. Dublin Bus has its own real time app and there are other apps for the Dublin bus network presenting the information in various ways. Open data can be used to give the citizen details on parking availability and accessibility. The ParkYa mobile parking app uses open data to help cities make their parking information more accessible to the public.”495 In the Netherlands, the national open data portal already includes data from several para- public bodies. A para-public entity, from the energy sector, follows in its open data strategy the national open data agenda (NODA), and offers open data as a tool for their energy transition efforts and in the public interest. The amount of open data made available is extended based on most frequent requests received for their bespoke data provision services. In Sweden, a collaboration of Swedish public transportation companies, Trafiklab,496 is offering real-time information on ticket prices, timetables and system status free of charge via an open API. This largest API in the area of transport has more than 460 registered developer accounts. However, there is no information provided on their activity and whether accounts are used by more than one person or project. Furthermore, the portal recorded 53 Million data inquires per week in mid-January. However, these inquires may be prompted by humans or automated retrieval systems. In the latter case, no information on the frequency is disclosed.497 Another example is not Member State specific but shows how access to datasets can enable cross-border passenger transportation. A UK based independent digital rail platform sells

495 See Open Data Strategy 2017- 2022, Government Reform Unit, Ireland. 496 Trafiklab is a joint public open data initiative of public transportation companies (Samtrafiken, Stockholm Public Transit, Östgötatrafiken), public transport administration (Trafikverket) and research bodies (RISE Viktoria). 497 However, data downloaded via inquiries of one account may reach a very large number of end-users: For instance, Google retrieves public transport data twice a week. This data may then reach hundreds of thousands of end-users in the same period.

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tickets on behalf of 87 train companies across 24 countries. In this case, access to different real-time and other existing data sources creates a one-stop shop for travelling by train. Customers can compare travel options in terms of pricing, duration, or comfort level. Separate tickets from different operators can be combined into one journey. This leads to more travel options, shorter journey times, and less expensive tickets. Our findings show how positive effects of open data and re-use are in the public interest and, more specific, in the interest of transport and energy policy. Data-driven innovations especially in the mobility area are becoming a major driver for the future of public transport, including intermodal solutions, cross-border travelling and choice of operators. In the light of increasing amounts of data generated in the sector and the willingness of more and more para-public bodies to engage in an open data strategy the potential of encouragement and legislation in this field needs to be further explored. Charging provisions The effects deriving from the problems in terms of charging and pricing of PSI described above are multiple. First, fair competition in the data economy is not ensured. As already mentioned in the problem section, the PSI data market is very elastic to price498 and there are already obstacles for SMEs and smaller players who might not have the possibility to pay for certain (high value) datasets. This situation can constitute a de facto “exclusive or almost exclusive access over certain types of data”. The above-mentioned example of Belgium is very relevant in this respect. In Belgium only two companies can afford to pay to have full access to the business register datasets which cost up to 75.000 euro per year499. Other examples from the cultural sector prove that bigger players, such as for instance Google Scholar, also tend to have access alone (or almost) to certain datasets due to their price500. These companies do not have an interest in seeing the price of the concerned dataset lowered as this constitutes a barrier to entry for competitors. Therefore, the market still seems present a number of price-related entry barriers and to favour bigger players and companies over SMEs and start-ups although the PSI Directive has already significantly contributed to decrease prices of data over time (and notwithstanding the already existing trend in this respect – see chapter 3.2.3). This also translates into a loss of potential for the data-driven research and innovation in the data economy. Indeed, if not all players in the ecosystem can equally benefit from the re-use of PSI data, there is an opportunity cost to be borne by the entire society as more limited number of innovative services and products can be developed501. The case of the business registers mentioned above is a clear example of this loss of potential as it proves to

498 The cost of Geospatial Open Data, Peter A. Johnson, Renee Sieber, Teresa Scassa, Monica Stephens, Pamela Robinson, Transaction in GIS, Wiley, January 2017, http://onlinelibrary.wiley.com/doi/10.1111/tgis.12283/full 499 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document and see also section 3.2.3 on charging provisions. 500 Strategic interviews 501 See : Study on emerging issues of data ownership, interoperability, (re-)usability and access to data, and liability, SMART 2016/0030, 201x7, Unpublished document

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what extent barriers related to charging can prevent and/or discourage re-users from developing new services. Moreover, as already argued in the POPSIS Study, there is evidence that providing data for free attracts new (unexpected) re-users502. “For instance, as a consequence of the price cuts from the Dutch meteorological office, KNMI, a new SME re-user launched an innovative service which generated around 100 million hits per year already back in 2010”503. Lowering the prices or providing data for free therefore allows to capture “unforeseeable” benefits and especially building on smaller players’ re-use. Finally, as a result also of the different charging and pricing strategies of PSBs, the transition towards a data-based economy does not pair with jobs creation and better public services and experiences in the different Member States in this respect vary a lot504. Indeed, to a more limited product and service offering corresponds a more limited number of jobs and missed opportunities for improvements of public services. In some Member States, different public bodies for instance have to pay for re-using the data from other public sector authorities505. Therefore, all these specific effects contribute to the fact that the DSM is not functioning as smoothly as it could and that consumers and citizens are faced with limited freedom of choice, transparency of government activities. APIs and dynamic data As evidenced in latest consultations and studies, the issues of data format, interoperability and distribution, in particular data APIs, are already considered as one of the main barriers to innovation and competition for open data, and for the data economy as whole. The issue will become even more important as high-value datasets are becoming more and more available online. The lack of interoperability and data APIs hinders innovation and competition, and benefit to large-scale companies that have the infrastructures to tap into and manage large-scale non-interoperable datasets. The main effects are summarized below:

 Data-driven activities are spending considerable efforts on data collection, cleaning and processing rather than on creating insights and value from the data itself;  The size of certain markets are constrained and transition to a data-based economy slowed down due to the unavailability of highly demanded dynamic data and large datasets in interoperable forms. This has been evidenced in various sectors such as in energy, environment, transport and health;  Fair competition is not ensured as technical barriers favours existing data monopolies that have the necessary infrastructures, human resources and data sensors to gain advantage from the lack of API and dynamic data.

502 See: Study on the Pricing of Public Sector Information – POPSI Study, October 2011, Deloitte, https://ec.europa.eu/digital-single-market/en/news/pricing-public-sector-information-study-popsis-models- supply-and-charging-public-sector 503 See : Open Data for Economic Growth, The World Bank, 25 June 2014, http://www.worldbank.org/content/dam/Worldbank/document/Open-Data-for-Economic-Growth.pdf 504 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document 505 See Minutes of the Member States PSI working group, November the 10th, 2017, Unpublished document

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Exclusive agreements The problems linked to exclusive agreements in terms of barriers faced by businesses, PSBs and citizens all lead to a situation in which competition within the DSM is not ensured and re-user, businesses and citizens are not able to reap all the benefits of the data economy. In terms of competition, it is clear that situations in which one or a limited number of players have a monopoly of re-use of certain datasets (unless duly justified) are not consistent with the objectives of the Directive and the overall competition rules within the European Union. This is also why there is a growing attention towards these agreements from competition authorities in different countries and at the EU level. At the same time, this de facto monopoly situation not only affects other potential re-users from a competition perspective but it also has an impact on the society overall, as the potential and benefits of the data are not fully exploited. It hence hampers the data economy in the EU and it slows down its growth.

6.2 Definition of policy objectives The policy objectives set out the political priorities and aims for action in the relevant field.506 The definition of policy objectives is an essential step of each Impact Assessment as they, in accordance with the Better Regulation Guidelines, support:

 The creation of a logical link between the problems identified and the solutions considered;  The clarification of the relationship between the specific goals of the initiative considered and the horizontal EU objectives and/or any other relevant agreed policy goals;  The explanation of any trade-off between different policy objectives;  The definition of the criteria for comparing the different policy options and the indicators to measure performance and progress towards the objectives; and  The establishment of the criteria to be considered as part of the proposed monitoring and evaluation framework for the policy measure implemented. Policy objectives are normally identified at the following levels:

 General objectives refer to Treaty-based goals and constitute a link with the existing policy setting;  Specific objectives relate to the specific domain and set out what the Commission wants to achieve with the intervention in detail; and  Operational objectives deal with deliverables or objectives of actions.

506 European Commission, Better Regulation Guidelines, 19 May 2015, SWD(2015) 111 final, pp. 21-22 (http://ec.europa.eu/smart-regulation/guidelines/toc_guide_en.htm); European Commission, Better Regulation "Toolbox", complementing the Better Regulation Guidelines presented in in SWD(2015) 111, pp. 80-81 (http://ec.europa.eu/smart-regulation/guidelines/docs/br_toolbox_en.pdf).

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Operational objectives tend to pre-empt the solution (e.g. if a specific legislative instrument needs to be clarified). Therefore, it is not always appropriate to define the operational objectives directly after the analysis of the problems, but rather after identifying the preferred option by means of which the general and specific objectives would be achieved.

Figure 49 - General objective tree

6.3 Definition of policy options This section provides a definition of policy options based on the discussions with the European Commission, as well as the feedback received so far from stakeholders. Overall, we suggest below the following types of (regulatory and non-regulatory policy) options.

6.3.1Baseline scenario/No intervention

As part of Impact Assessment studies, the baseline scenario should always be considered as a policy option. This means that no additional action would be taken apart from what is currently planned or already underway for any of the problems examined above in terms of:

 Research data  Data held by para-public bodies  Charging practices

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 APIs and dynamic data Under this policy option, the implementation of the Directive will continue and the Member States will further develop national guidelines on charging, licensing etc. The Member States will finalise the transposition and report on the outcome of all their efforts. However, no further action from the European Commission’s side will be taken to address the shortcomings of the Directive as emerged from the evaluation and solve the problems and challenges identified in the previous chapter. This implies that:

 No specific non-regulatory actions are undertaken (e.g. stakeholder engagement and coordination, awareness raising, funding open data projects, etc.); and  No specific regulatory intervention are undertaken (no modifications to the current PSI Directive are brought). This policy option is the baseline for our assessment for each of the above-mentioned problem areas.

6.3.2 Non-regulatory policy option

This policy option aims at addressing the different issues identified in the problem assessment through non-regulatory measures. The list of non-regulatory options can include a broad package of actions, which can be applied selectively or cumulatively, and that can concern a single topic (e.g. data format, data protection etc.) or more generally the entire Directive (e.g. awareness and communication campaigns). Based also on the discussion with stakeholders, the following non-regulatory options can be put forward:

 Funding of initiatives;  Stakeholder engagement and coordination;  Communication and awareness raising;  Development of technical guidelines / recommendations; and  Standardisation efforts. These options would not require any binding decision to be taken by the legislator but could be adopted by the European Commission alone without modifying in any way the legislative framework of the current Directive. Further details are provided below. Policy option 1a: Funding of initiatives This policy option concerns funding for open data initiatives at all levels (including additional support for Europeana and the European Data Portal in order to increase data visibility) through existing European funding programmes, such as:

 Horizon 2020507;  Creative Europe508; and

507 See: https://ec.europa.eu/programmes/horizon2020/

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 Connecting Europe Facility509. Funding can also be specifically dedicated to support initiatives in the domains of research data, data hold by para-public bodies and APIs and data format. Policy option 1b: Communication and awareness raising This policy option includes launching awareness raising and communication campaigns on the PSI Directive targeting public sector bodies or re-users. Moreover, the promotion and dissemination of best practices in general or in particular sectors could be envisaged as well. This could e.g. concentrate on:

 Specific domains such as the cultural data domain, research data, data hold by para- public bodies; or  Types of data such as geospatial data, dynamic data etc.; or  Provisions of the PSI Directive such as e.g. those on charging, those on data format;  Emerging issues such as on exclusive agreements; or  New approaches to data provision such as through API. Policy option 1c: Development of technical guidelines / recommendations Under this policy option, several different elements can be considered. At this stage, we suggest the development of technical guidelines / recommendations in relation to:

 Substance of the PSI Directive, especially in relation to charging, licensing, data format;  Links of the PSI Directive to other legal instruments: copyright rules and other existing legal instruments;  Technical implementation in relation to APIs and dynamic data.  Recommendations on exclusive agreements and issues to be considered when establishing public-private collaborations also concerning data.  Awareness raising for domains currently not covered by the Directive such as research data and data held by para-public bodies. Concerning the substance of the PSI Directive, especially in relation to charging, EU level guidelines on recommended principles could be developed dealing with establishing objectives, as well as transparent and verifiable criteria at the national level to guide public sector bodies in their definition of the charges. Licensing is also another important domain which, according to stakeholders, would benefit from more guidelines from the EU level. With regard to the links of the PSI Directive to other legal instruments, guidelines concerning interaction between the PSI Directive and copyright rules could be developed that are especially targeted at museums, libraries and archives.

508 See : https://ec.europa.eu/programmes/creative-europe/ 509 See : https://ec.europa.eu/inea/en/connecting-europe-facility

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Moreover, the development of EU level guidelines concerning interaction between the PSI Directive and other EU legal instruments could be of importance for other types of stakeholders, e.g. in relation to:

 GDPR  Inspire Directive;  Trade Secret Directive; and  Database Directive. At the more technical level, the development of recommendations to improve the development and take-up of APIs in relation to the provision of data could be envisaged. In addition, the development of recommendations concerning dynamic data and how/when to make it available (instead of static data) could be envisaged as well. Both elements could include the showcase of good practice examples. Policy option 1d: Standardisation efforts At this stage, standardisation efforts could concentrate on the formats of data and metadata to facilitate discoverability and re-usability of data. The Commission could work on standardization alone or with other stakeholders/institutions. Standardisation efforts could also be deployed with respect to the provision of dynamic data by public sector bodies or the development of APIs. Policy option 1f: Stakeholder engagement and coordination Finally; non-regulatory options could include the establishment of additional stakeholder engagement and coordination activities on top of the PSI Member State working group and involving other stakeholders (e.g. the local and regional authorities or re-users etc.). These activities could take the form of working groups, high-level groups, online communities or other and could concern any of the themes mentioned for the other non-regulatory policy options.

6.3.3 Regulatory policy option

Beyond the non-regulatory option, legislative actions could also be considered to address some or all the problems identified in Chapter 4. Logically, regulatory options would entail, in the context of the PSI Directive, legislative changes to one or more of its provisions/articles. In this respect, different sub-options could be developed according to whether the legislative changes would occur in the a) scope of the Directive, b) in the provisions regulating charging or c) in the provisions concerning data format and practical arrangements. These changes are not mutually exclusive of course: they could be taken separately (e.g. only the scope of the Directive would be modified) or incrementally (the scope of the Directive and the provisions of charging etc. would be modified).

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Policy option 2a: Changes in the scope of the Directive Article 1 of the PSI Directive currently defines the types of public bodies and data falling into its scope and it lists the exceptions to the general rules for re-use of data. Policy option 2a therefore consists in a modification of this article in order to extend the scope of the Directive to establishments and data not yet covered and reduce the number of exceptions. According to the problem statement elaborated above, there are two main changes that could be considered with respect to the current scope of the Directive: the extension of the scope to research data, to data held by para-public bodies or to both these types of data. These three sub-options are described below. Sub-option 2a.1: Extension of the scope of the Directive to research data Currently, “documents held by educational and research establishments, including organisations established for the transfer of research results, schools and universities510” are exempted from the general rule imposing that public sector bodies make their data available for re-use. Extending the scope of the Directive to research data would take the shape of three alternative options:

 the fully fledged removal of the exception introduced in the directive, thereby extending the provisions to public bodies active in research and education. This would apply to both research data produced by these institutions, and administrative data concerning their operational activities (e.g. on budget, facilities etc.);  the removal of the exception only for administrative data, maintaining it for research-related data;  the application of the directive only to research data, but extending the concept beyond data produced and owned by public research bodies to any research activity funded by public money, irrespective of who is carrying it out (thereby including private companies’ research project if public funding is involved. Of course, the limitations to data re-use established by the same article (Article 1) of the PSI Directive would still be applicable (e.g. for data protected by copyright, intellectual property rights or personal data etc.) Sub-option 2a.2: Extension of the scope of the Directive to data held by para- public bodies or “bodies governed by public-law” Similarly to sub-option 2a.1, this sub-options implies that Article 1 of the current Directive is directly modified to mention para-public bodies as establishments falling under the PSI rules. This would also entail that a precise meaning of what is “para-public” would have to

510 Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information, see: http://eur-lex.europa.eu/legal- content/EN/ALL/?uri=CELEX:32013L0037

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be set in Article 2 of the present Directive, which presents the applicable definitions. For the moment, it has been argued that the definition of para-public bodies should be taken from Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors511. In this case, para-public bodies could be defined as “contracting entities” in the meaning of Article 4: Contracting entities are, for example, public undertakings pursuing activities in the field of Gas and heat, Electricity, Water, Transport services, Ports and airports, Postal services, etc. or entities operating in this field on the basis of special or exclusive rights (legislative, regulatory or administrative provision to limit the exercise of activities to one or more entities).512. Based on the problem assessment presented above, para-public bodies in the field of energy and transport should be particularly targeted by this modification while other para- public bodies (e.g. in the domains of waste, postal services, telecommunications etc.) could be still left outside the scope of the Directive. With respect to this policy options, several sub-options exist and will be tested through the analysis:

 Extending the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU or on the basis of a concession bodies and entities under the default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.).  Define a selection of such bodies, based on objective criteria (EU procurement legislation) and introduce a requirement to apply certain provisions of the Directive to the re-use of the data they hold (e.g. no requirement of cross-subsidies, no requirement related to the processing of requests, no requirement of free-of charge pricing)  Extend the scope of the PSI Directive to cover para-public bodies and private entities (with exclusion of fully private entities) carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply.  Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use (including by entities in the utilities sectors, newly brought within the scope of the Directive).

511 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, see : http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32014L0025 512 Article 4, Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, see : http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32014L0025

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Policy option 2b: Changes in the charging provisions As the problem assessment shows, charging for data re-use is still an economic barrier for the achievement of a European data economy and for the re-users themselves. To address this barriers, four high level regulatory sub-options could be envisaged:

 Introduce a free of charge re-use rule as the only rule for all documents covered by the Directive  Amend article 6 to strengthen the default rule of free of charge re-use and get rid of exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c).  Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use by the entities to which the Directive applies.  Mix of the above These four sub-options are described below. Sub-option 2b.1: Introduce free of charge re-use as the only rule for all documents covered by the Directive A first possibility with respect to charging could be of introducing a free of charge re-use as the only rule for all documents covered by the Directive. This approach would entails that re-use should be granted for free to any kind or players for any type of data falling into the scope of the Directive and that and that public sector bodies would not be allowed to charge them. This would entail also the deletion of all exceptions as this free of charge re- use rule would cover all PSI relevant bodies and datasets. Sub-option 2b.2: Amend article 6 to strengthen the default rule of free of charge re-use and get rid of exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c). Article 6 of the current PSI Directive defines the principles concerning charging including the general rule and its approaches. According to these principles and as described in Chapter 2, the general rule of charging at the marginal costs does not apply in a number of cases:

 for public sector bodies who are required to generate revenue to cover substantial part of their costs (a);  for documents for which the public body concerned is required to generate sufficient revenue to cover a substantial part of the costs related to their collection, production, reproduction and dissemination (b);

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 for cultural institutions who can have as upper limit for charging the costs of collection, production, preservation and rights clearance, reproduction and dissemination, together with a reasonable return on investment (c)513 Sub-option 2b.1 would entail the deletion of the point (b) above (exception for documents) and the clarification of the eligible costs that could be recovered through charging for the two other points (a and c). Sub-option 2b.3: Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use by the entities to which the Directive applies. A third sub-option would consist in listing in a modified article 6 of the Directive or in a delegated or implementing act a number of key datasets (in key domains) which should be provided for free for re-use. Such a list could include the most re-used and valuable datasets such as those related to geo-spatial data, business registers, environmental data and/or any other dataset which would be considered as crucial. The rules concerning the possibility of charging at the marginal costs and the limitations to this provisions could still apply to the datasets which are not in the abovementioned list. Policy option 2c: Change in the data format provisions and practical arrangements Finally, the last sub-option should consider possible modifications and changes in the data format and practical arrangements provisions. In this respect, the legislative intervention would aim at strengthening articles 5 and 9 of the current Directive514 and adapt it for specific documents that are dynamic data. Based on the problem assessment in fact, three possibilities emerged in this respect:

 The possibility to impose a set of obligations on available formats and practical arrangements related to documents already available online, not available online but existing in digital form, and to dynamic data;  The possibility to recommend the adoption of measures on available formats and practical arrangements as above or to impose them but only for large public sector bodies; These three possibilities are further described below.

513 See Article 6, Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information, see: http://eur- lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013L0037 514 See Article 5 and Article 9, Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information, see: http://eur- lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013L0037

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Sub-option 2c.1: Amend Article 5 to impose a set of obligations on format and distribution As suggested in the previous sections and as emerged from the analysis, APIs are becoming increasingly important in the European data economy, in particular in sectors relying on real time information such as transport, weather or energy, and are more and more adopted by public sector bodies releasing their data515. For this reason, it could be decided to impose on public sector bodies to make their dynamic data available for re-use immediately after collection through a public API (also referred to as an open API). The definition of what constitutes a dynamic data should be the subject of further analysis but a definition could be: a data regularly updated through time, as opposed to static data, and whose value is much more important if delivered immediately after collection (we would then also speak of real-time data). Beyond dynamic data, there is still a lot of value locked in documents existing in digital form but that have not been made available online. Therefore, Article 5 could also impose for documents existing in digital form, to make them available online in open and machine- readable format, under certain conditions, and to make such obligation unconditional if the document in question has already been made available for re-use (this may oblige the public sector body to adapt the format of the document). As a consequence of the provision above, Article 5 (or Article 4) could be also amended so that a public sector body would be allowed to refuse a request of re-use on the basis of online availability. In summary, Article 5 would be amended to include the following obligations:

a) to make dynamic data available for re-use immediately after collection via an API b) to make all documents existing in digital form available online under conditions c) to make such obligation unconditional if the document in question has already been made available for re-use d) to allow refusal of re-use requests on the basis of online availability

Sub-option 2c.2: As above, but formulated as a soft obligation (e.g. as add-on to existing provision) or only applicable to large public sector bodies Taking into consideration that not all public sector bodies would have the resources or capacities to release their dynamic data through public API or to adapt their documents, already available online, into open and machine-readable formats, another option could be to introduce the measures cited above, as a soft obligation, that would go as an add-on to the existing provisions of Article 5, or as an obligation, but only applicable for large public sector bodies.

515 See Minutes of the Member States PSI working group, November the 10th, 2017

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The definition of a large public sector body is a subject of discussion, but first analysis showed that this should at least include producers of high value datasets or dynamic data, in sectors such as transport, energy and environment. Policy option 2d: Change in the provisions regarding exclusive agreements The problems related to exclusive agreements and especially the emerging “de facto” exclusive agreements cases can be addressed through legislative intervention and by strengthening the PSI Directive provision on this topic. In particular, two approaches could be envisaged:

 Modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity.  Modifying article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity Each of these policy options is further described below. Sub-option 2d.1: Modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity. This first sub-option aims at addressing any risk of “de facto” exclusivity by making it impossible for PSBs and private partners to conclude agreements which have high risks of leading into such a situation. Therefore, PSBs would need to verify ex ante that such as risk exists or not before signing on any public private agreement. Sub-option 2d.2: Modifying article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity This final sub-option is a lighter version of sub-option 2d.1 as it does not make immediately unlawful agreements that may lead to “de facto” exclusivity over the data but rather establishes a safeguard mechanism that can be activated at any time if the risks become more concrete. This sub-option therefore provides a tool for PSBs and other stakeholders in order to make them able to flag and then challenge agreements even after they are concluded. The safeguard mechanisms could be decided by the PSBs themselves or at the national and/or European level.

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7 Assessment of policy options

This Chapter illustrates the outcome of the preliminary analysis of the policy options per problem areas identified on the basis of the policy objectives. According to the Commission’s Better Regulation Guidelines, the policy options should be defined in such a way that they are most likely to achieve the policy objectives and address the problems, taking due account of the principles of proportionality and subsidiarity. The definition of policy options follows a three-step approach in line with the Better Regulation Guidelines: 1. Identification of a wide range of potential policy options; 2. Screening of the identified options; and 3. Selection of the most relevant options for further definition and analysis. In the present report, we provide the findings of step 2, the screening of the policy options, by means of a high-level assessment of their feasibility. More specifically, the aim of this step is to check the policy options against certain key criteria, to get an understanding of their potential performance and to come to a conclusions whether all options are relevant to considered further or if any options can be discarded. The screening also serves to identify any needs for amendments to the set of options.

 The following criteria have been applied for this screening:  Effectiveness;  Efficiency;  Proportionality;  Legal feasibility and coherence with other EU policy objectives516;  Practical (operational) and technical feasibility; and  Political feasibility. For the purpose of the assessment of the feasibility of the options according to these criteria, an assessment template has been prepared and filled in for every option. In addition, we checked that all options are relevant, i.e. that there are no overlaps between different options.

516 The Better Regulation Guidelines also mention the criterion “Previous policy choices“. We considered previous policy choices as part of the assessment of coherence.

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7.1 Research data 7.1.1 Baseline scenario Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option presents a number of advantages: which the options address the key policy objectives, in o Limited disruption of the ongoing process of opening up data the policy objectives) particular: o No new barriers to industry participation in public research programmes o To increase (fair) competition in  The disadvantages are the following: the Digital Single Market o Limited increase in data sharing and reuse, with persistent bottlenecks to o To contribute to research and achieving research and innovation goals innovation reaching its full potential o Persistent difficulty in detecting scientific fraud and error o To contribute to the creation of jobs and better public services o To reduce costs linked to obtaining data and administrative burden o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  No additional costs in the absence of open data obligation which would imply balance) (public and private) stakeholders additional investment by research institutions  Main benefits for various  High costs for research and duplication of data collection costs

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Criterion Examples of elements to consider Main advantages / disadvantages stakeholders  Continuous fragmentation of data availability in different formats and data  Indicative relation between costs sharing modalities and benefits Proportionality (i.e. extent  Assessment of whether the option  No risk to go further than what is needed to which the options are in goes further than what is needed, line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This sub-option is legally feasible, it represents the continuation of the status coherence (i.e. extent to international law quo. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  No need for additional technological and practical investment, since the feasibility (i.e. practicalities implementation of the option, progress would remain gradual. needed for the including e.g. the need to set up 286

Criterion Examples of elements to consider Main advantages / disadvantages implementation, monitoring new IT tools and to what degree  Therefore, this option is practically and technologically feasible. and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Opinions on this sub-option are split. stakeholder support) politically sensitive  On the one hand, it would not encounter opposition from industry participating  Known positions of specific groups in research programmes of stakeholders  On the other, opposition by come from stakeholders and open science advocate  This sub-option is also not in line with the activities carried out by funding agencies in EU countries and can be perceived as lowering priority towards achieving greater sharing of open data Conclusion on feasibility of  Summarise the main findings, in  The option seems inappropriate because it is too much at odd with the strong the option particular noting whether the momentum behind open science in EU MS and globally, which calls for an option is relevant to be retained active European role to avoid fragmentation in the European Research Area, for further analysis and whether it and beyond. should be amended

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7.1.2 Non regulatory policy options Funding for initiatives, communication and awareness raising, development of technical guidelines/recommendations, standardisation efforts and stakeholder engagement

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option presents some advantages: which the options address the key policy objectives, in o Limited disruption of the ongoing process of opening up data in the different the policy objectives) particular: scientific communities o To increase (fair) competition in o Limited barriers to industry participation in public research programmes the Digital Single Market  But a number of disadvantages also exist: o To contribute to research and o Limited increase in data sharing and reuse, with persistent bottlenecks to innovation reaching its full achieving research and innovation goals, but allowing re-adjustment of the potential underlying mechanisms (career paths, research evaluation methods, o To contribute to the creation of publication value chain) with respect of the differences between disciplines jobs and better public services and scientific communities o To reduce costs linked to obtaining data and administrative burden o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  The positive sides in terms of efficiency are:

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Criterion Examples of elements to consider Main advantages / disadvantages balance) (public and private) stakeholders o This sub-option would entail limited additional costs in the absence of open  Main benefits for various data obligation which would imply additional investment by research stakeholders institutions  Indicative relation between costs o Gradual reduction of fragmentation of data availability in different formats and benefits and data sharing modalities, thanks to guidelines, standardisation, awareness and funding o Reduction of confusion about data ownership, access and reuse  The negative sides consist in: o Limited reduction in need for duplication of data collection costs o Limited change in career-related incentives for researchers to share data. Proportionality (i.e. extent  Assessment of whether the option  No issue could be identified in terms of proportionality. to which the options are in goes further than what is needed, line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is legally feasible. coherence (i.e. extent to international law which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive

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Criterion Examples of elements to consider Main advantages / disadvantages o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option entails substantial work by the EC in terms of stakeholder’s feasibility (i.e. practicalities implementation of the option, engagement and awareness raising, collaborative work on guidelines and needed for the including e.g. the need to set up standards implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Because of this choice of continuity, limited opposition from stakeholders is stakeholder support) politically sensitive expected. Many stakeholders are vocal about the need for continuing the push  Known positions of specific groups towards open data, but others are concerned that for specific stakeholders of stakeholders (industry but also researchers in some disciplines) a “one size fits all” approach is not appropriate. This approach would allow for more tailored, bottom up approach with different stakeholders communities. Conclusion on feasibility of  Summarise the main findings, in  This option is highly feasible, in terms of political acceptance and technical the option particular noting whether the feasibility. At the same time, it is not very ambitious in terms of accelerating option is relevant to be retained the transition towards “open science” and the “data economy”. for further analysis and whether it should be amended

7.1.3 Regulatory policy options Abolish the current exclusion of documents held by public educational and research establishments (art. 1.2(e))

Criterion Examples of elements to consider Main advantages / disadvantages

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Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option presents a number of advantages: which the options address the key policy objectives, in o Strong positive impact on awareness about the issue, and on the need to the policy objectives) particular: readjust the overall institutional settings of science to provide the right o To increase (fair) competition in recognition and incentives to scientists. It is likely to accelerate the the Digital Single Market development of new ways to recognize data publication in the career system o To contribute to research and of scientists innovation reaching its full o If successful, it is likely to radically increase the quantity and quality of potential scientific production o To contribute to the creation of  At the same time, disadvantages could be identified: jobs and better public services o Negative impact on the capacity of public research institutions to o To reduce costs linked to collaborate with industry. Industry would be reluctant to collaborate if this obtaining data and implies widespread opening up of the results administrative burden o Limited impact on actual behavioural change by scientists, especially in the o To reduce legal, e.g. uncertainty absence of strong enforcement mechanisms. It is clear that regulation is not concerning specific data and the main driver of adoption of open data by researchers associated rights o Potential backlash from negative consequences in terms of low industry o To ensure EU-wide access to collaboration, disruption of scientist’s careers, excessive costs of data PSI-based services for preparation. citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  If successful, this sub-option would have some positive consequences in terms balance) (public and private) stakeholders of efficiency:  Main benefits for various o it would lead to radical efficiency improvement in science, in terms of stakeholders reduction of data collection and duplication of effort, and increased  Indicative relation between costs productivity and benefits o Reduction in fragmentation and diversity between Member States policies towards open scientific data

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Criterion Examples of elements to consider Main advantages / disadvantages o Possible acceleration of the convergence process towards interoperable data standards and common licenses  But negative consequences would also exist: o Diversion of limited research funds for institutions towards data repositories and publication o Limited impact if only regulatory intervention, since researchers appear not very responsive to top-down norms and more to peer-pressure. Enforcement of open data mandates is a permanent issue.

Proportionality (i.e. extent  Assessment of whether the option  The proposal is very ambitious. In view of the strong differences between to which the options are in goes further than what is needed, disciplines and scientific communities, this radical proposal covering in a similar line with what is needed to based on: way all these domain seems too rigid and far-fetched for the current statues achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  The legal feasibility of this sub-option should be further assessed through coherence (i.e. extent to international law analysis of the legal data collected from the Member States. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive

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Criterion Examples of elements to consider Main advantages / disadvantages o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  In order for this option to work, it requires extensive work as a follow up in feasibility (i.e. practicalities implementation of the option, terms of clarifying ownership, licensing requirements, research assessment needed for the including e.g. the need to set up mechanisms, career mechanisms, collaboration rules with industry and implementation, monitoring new IT tools and to what degree possible exceptions and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Stakeholders from both the research and innovation ecosystem are reluctant stakeholder support) politically sensitive to embrace this radical choice and call for a more gradual and carefully  Known positions of specific groups designed approach, taking into account the specificities of different disciplines, of stakeholders the market orientation of the institutions. Conclusion on feasibility of  Summarise the main findings, in  While potentially highly beneficial in terms of effectiveness, the proposal the option particular noting whether the appear too far-fetched in view of the current ongoing progress of the bottom- option is relevant to be retained up approach and of the wide variety of issues at stake: from the differences for further analysis and whether it between disciplines to the need for reform of research assessment and career should be amended mechanisms. Partially abolish the exclusion of 1.2(e) in order to allow the re-use of administrative data held by public research and higher education establishments as well as data held in repositories belonging to these establishments

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option would have these main advantages: which the options address the key policy objectives, in o Increased transparency of research and educational institutions, which is the policy objectives) particular: beneficial to research and education quality. o To increase (fair) competition in o Economic returns on new services built on these data, for which consulted the Digital Single Market stakeholder mention high demand to support educational choices o To contribute to research and o Increased consistency of rights for reuse of data already published by

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Criterion Examples of elements to consider Main advantages / disadvantages innovation reaching its full research establishments, thereby facilitating reuse potential o By targeting only data already published in repositories, the measure will o To contribute to the creation of not force researchers to release their data, allowing for a more organic and jobs and better public services gradual approach on a discipline by discipline basis, accompanied by the o To reduce costs linked to adaptation of the incentives and reward system. obtaining data and administrative burden  The main disadvantages are related to: o To reduce legal, e.g. uncertainty o Disruption of public-private collaboration, by limiting the flexibility of concerning specific data and arrangements with the private sector. There are several cases today where associated rights public institutions hold in their repositories data co-produced with the o To ensure EU-wide access to private sector, for which they provide discretionary access and different PSI-based services for publication timing delays. The definition of the scope of data considered citizens/consumers “already accessible” should therefore be very clear. o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  This sub—option would increase costs for data publication by budget- balance) (public and private) stakeholders constrained education and research organisations, with regard to  Main benefits for various administrative data. stakeholders  With regard to research data, it would not require additional costs but only a  Indicative relation between costs streamlining of licensing provisions. and benefits Proportionality (i.e. extent  Assessment of whether the option  Stakeholder mention strong demand about administrative data of educational to which the options are in goes further than what is needed, establishment, but there is limited evidence of it, so that a regulatory line with what is needed to based on: intervention could appear too strong. achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures)

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Criterion Examples of elements to consider Main advantages / disadvantages Legal feasibility and  Obligations arising from  The legal feasibility of this sub-option should be further assessed through coherence (i.e. extent to international law analysis of the legal data collected from the Member States. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  Research and educational institutions would have to increase their data feasibility (i.e. practicalities implementation of the option, management resources and competences in order to comply. needed for the including e.g. the need to set up  The options’ would be easier to accept and implement by researchers, since it implementation, monitoring new IT tools and to what degree does not force them to release their data in the absence of appropriate and enforcement) this is feasible recognition  The option does not imply an intrusion in Member States policies on Open Access, since it will only apply to already accessible data Political feasibility (i.e.  Extent to which the option is  There is no evidence of an opposition by stakeholders to publishing stakeholder support) politically sensitive administrative data – the only inputs received are in favour.  Known positions of specific groups  There is concern in the research community about the need to preserve of stakeholders flexibility in data publication, access and reuse, even for data already included in repositories.

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Criterion Examples of elements to consider Main advantages / disadvantages

Conclusion on feasibility of  Summarise the main findings, in  The proposal seems to contribute to transparency and to innovation, through the option particular noting whether the the publication of administrative data option is relevant to be retained  It will facilitate reuse of already published research data – without forcing for further analysis and whether it researchers to release data against their will and interest. should be amended  The proposal should be designed to avoid disruptions in public private collaboration and allowing sufficient flexibility in terms of data publication. The existence of data in a repository does not mean the data is open and accessible – there are repositories with discretionary access.

Introduce a requirement to make available for re-use under specific provisions of the Directive of all research information resulting from publicly-funded research covered by Open Access obligation, regardless of the entity holding the data (public/private/individual).

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option would present a number of advantages: which the options address the key policy objectives, in o Strong increase in data availability across all MS, because of the application the policy objectives) particular: of all public research data o To increase (fair) competition in o Strong increase in reuse for scientific purposes the Digital Single Market o Possible positive kick off effects in terms of accelerating the readjustment of o To contribute to research and institutional incentives to openness, such as recognition, data citation, innovation reaching its full research assessment, potential  On the other hand, disadvantages could reside in the possible decrease in o To contribute to the creation of participation by private companies because for the requirements for openness. jobs and better public services  Moreover, there would be a limited impact if only regulatory intervention, o To reduce costs linked to since researchers appear not very responsive to top-down norms and more to obtaining data and 296

Criterion Examples of elements to consider Main advantages / disadvantages administrative burden peer-pressure. Enforcement of open data mandates is a permanent issue. o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  If successful, it would lead to balance) (public and private) stakeholders o Radical efficiency improvement in science, in terms of reduction of data  Main benefits for various collection and duplication of effort, stakeholders o Reduction in fragmentation and diversity between Member States policies  Indicative relation between costs towards open scientific data and benefits  But it would also impose administrative burden and costs on the research establishment considered. Proportionality (i.e. extent  Assessment of whether the option  The proposal is possibly even more ambitious than 3a), since it extends to any to which the options are in goes further than what is needed, research funded by public data across Europe. It extends the individual line with what is needed to based on: provision of the most open funders in Europe to all research funders. The achieve the policy o Scope of the option problem remains with the difficulty in ensuring a measure that applies equally objectives) to disciplines with very diverse data sharing practice o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  The legal feasibility of this sub-option should be further assessed through coherence (i.e. extent to international law analysis of the legal data collected from the Member States. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives)

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Criterion Examples of elements to consider Main advantages / disadvantages specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  The enforcement of such provision appear very complicated. Funder with open feasibility (i.e. practicalities implementation of the option, data mandate already struggle to implement their individual measure. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  There is a clear trend in Europe towards open data mandates by funding stakeholder support) politically sensitive institutions, and this option would facilitate and accelerate the process. At the  Known positions of specific groups same time, the process is by no means homogenous and does not cover all of stakeholders disciplines in equal manner. This regulatory intervention would imply a strong acceleration far beyond what individual funders are doing.  Most institutional stakeholders do not support such strong regulatory intervention  This would also represent an intrusion in Member States’ policies with regard to Open Access. Conclusion on feasibility of  Summarise the main findings, in  This option is very ambitious and difficult to implement at this stage. It would the option particular noting whether the be of controversial implementation when it comes to some disciplines, option is relevant to be retained especially those with industrial application.

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Criterion Examples of elements to consider Main advantages / disadvantages for further analysis and whether it should be amended

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7.1.4 Conclusions on the research data policy options

The ultimate goal is to ensure the greatest level of data generation, access and reuse within the European scientific community, and beyond. There has been steady progress over the years, but data sharing remains the exception, rather than the rule. The main reason does not lie in the wish to monetize data, but in the absence of appropriate incentives to data sharing, in particular for scientists, and in the commercial sensitiveness of some data generated together with the private sector. The best policy option is one that pursues greater data sharing and reuse without disrupting the current process of institutional adaptation. As things stand, the baseline scenario appears insufficient to guarantee the positioning of Europe in the data economy and in research. Non-regulatory options are certainly important and necessary, but not sufficient to guarantee sufficient progress and to address the key determinants of the lack of data sharing. When it comes to regulatory option, because of the particular nature of the scientific enterprise, the simple removal of the exclusion clause for scientific and educational bodies appears too rigid and simplistic, putting the researchers who are defined for administrative purposes as public employees in a position to be forced to share their data. More interesting is the possibility to simply ensure common rights for access and reuse for the scientific data that are already published in repositories: this will not disrupt the current process of institutional adaptation towards open science. At the same time, it could prove difficult to implement in the cases of public-private collaboration where discriminatory access to data is established part of the way of working together. Finally, the option entailing the opening up any data produced by public funding is ambitious and could be far reaching, in terms of generating systemic change. At the same time, it risks proving too disruptive: for researchers forced to share their data in the absence of adequate recognition, for companies which could become more reluctant to participate in publicly funded research, and for Member States being forced to adopt open data policies. In conclusion, the best solution is the combination of soft and hard policy measures, while there is scope for options with different levels of ambition depending on the political acceptance by stakeholders and Member States.

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7.2 Para-public bodies 7.2.1 Baseline Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve Advantages: which the options address the key policy objectives, in  Comparatively high legal certainty for para-public bodies as they decide about the policy objectives) particular: their open data strategy. Possibility of implementing a rather strict and limited o To increase (fair) competition in regime. More important is that companies decide also about how data is the Digital Single Market provided, i.e. they decide about pricing, technical standards and formats (on o To contribute to research and paper, tables, APIs, .pdf/.csv-files etc.), or licensing. innovation reaching its full  Licensing can include exclusivity, obligations to regular updates of app services, potential dynamic data, etc. To sum up, a rather open or very strict data strategy of the o To contribute to the creation of para-public body can be adopted in this scenario. jobs and better public services Disadvantages: o To reduce costs linked to  Strong competitive market prevent utility operators from becoming open data obtaining data and first movers. Only small intrinsic motivation to get involved in open data administrative burden strategies. o To reduce legal, e.g. uncertainty  Data sets from para-public bodies are generally not available unless the concerning specific data and company or its owner decides to publish specific data sets or make them associated rights available to software developers. Thus research and innovation potential is o To ensure EU-wide access to very limited. PSI-based services for  No or limited effect on job creation as companies decide who can use their citizens/consumers data for which applications. o To remove economic, technical  Improvement of public service usage (e.g. for door-to-door navigation in public and legal barriers transport) is hindered. In the energy sector, full potential of meta data analysis cannot be unlocked.  Software developers and application service providers face extensive negotiations with several para-public bodies to realise a vision of data re-use.

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Criterion Examples of elements to consider Main advantages / disadvantages  EU-wide access to data sets is complicated and costly.  Economic barriers remain (access to data and (re-)use options are limited. Cross-border issues remain unsolved.  Very limited market-driven technological improvements on interoperability and standardisation of applications. Friction in data usage (transaction costs, information costs). Efficiency (i.e. cost-benefit  Main cost factors for various  No additional costs for para-public bodies to enable re-use. Costs of open data balance) (public and private) stakeholders are presumed to be one of the main barriers to open data strategies in  Main benefits for various companies. stakeholders  Para-public bodies can balance costs and benefits on a case-by-case basis when  Indicative relation between costs choosing to publish data sets. and benefits  Data sets can be made available to selected public or private stakeholders either by contract or by open access. Re-use can be determined by the para- public body and optimized to the companies’ needs (licensing).  Almost no benefits for the users of utilities – data and information available is limited to data from the respective company.  High transaction costs for utilities’ users to get information on service provision, especially if cross-company information and comparison of tariffs is needed.  High investment for data re-users if they buy data sets from para-public companies or if they unlock alternative data sources.  High costs for re-users and overall public stakeholders to get access to data, very limited costs for para-public bodies. Proportionality (i.e. extent  Assessment of whether the option  Insufficient availability of public and publicly-funded data for re-use, limiting to which the options are in goes further than what is needed, the potential of data-based innovation in the economy, especially in the energy line with what is needed to based on: and transport sector but also concerning other utilities like e.g. waste achieve the policy o Scope of the option management. objectives)

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Criterion Examples of elements to consider Main advantages / disadvantages o Type of instrument proposed  A no change policy options seems proportionate. (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  No infringements of international law. coherence (i.e. extent to international law  No violation of EU Treaty objectives. which the options are in line  EU Treaty objectives and  Implications on fundamental rights of utilities’ users could be discussed. with legal requirements and requirements (e.g. on the  Compliance with GDPR is left to the respective company which has to make coherent with other EU competences of the EU to adopt sure on a case-by-case basis that it is not violating data protection regulations policy objectives) specific types of instruments) when opening up data sets.  Fundamental rights  INSPIRE Directive might require access to some utilities’ data. Apparently not a  EU secondary legislation, e.g. topic of controversial discussion yet. o GDPR (PSI including personal vs.  Questions relating to the Database Directive can be solved on a contractual excluding personal data) basis (or are avoided by not conceding re-use). o INSPIRE Directive  Questions relating to the Copyright Directive can be solved on a contractual o Database Directive basis (or are avoided by not conceding re-use). o Copyright Directive  Public Procurement Directive not affected. o Public Procurement Directives  Trade Secrets Directive: As the decision to make data accessible is left with the o Trade Secrets Directive para-public body, trade secrets can be considered and risks can be calculated by the company itself.  Overall, legal feasibility and coherence is assured. The status quo option is in line with legal requirements and coherent with other EU policy objectives. However, economic growth opportunities might be missed out (see line “Effectiveness” in this table). Practical and technological  Specific needs for the  Not applicable. Today, companies use existing tools to make data available to feasibility (i.e. practicalities implementation of the option, software developers and provide own applications and data sources. Some needed for the including e.g. the need to set up arrange hackathons to create usable software based on selected data sets. implementation, monitoring new IT tools and to what degree and enforcement) this is feasible

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Criterion Examples of elements to consider Main advantages / disadvantages Political feasibility (i.e.  Extent to which the option is  Overall, stakeholders (operators and their owners, mostly the local authorities) stakeholder support) politically sensitive are content with the status quo. It allows to implement open data strategies  Known positions of specific groups where useful for their own benefit and where additional costs are low. of stakeholders  Interviews on general level suggest that policy makers in the member states perceive the status quo as a barrier to further development of energy and transport applications and to overall innovation in this field. Conclusion on feasibility of  Summarise the main findings, in  Option is feasible, first research evidence shows no severe opposition or the option particular noting whether the movements towards a change of regulation (i.e. change of status quo) on option is relevant to be retained member states level (exemption: France). for further analysis and whether it should be amended

7.2.2 Non regulatory policy options Issue guidance to the Member States encouraging the opening up of data held by para-public bodies in certain sectors (in the field of soft options like e.g. Funding for initiatives, Communication and awareness raising (e.g. by flagship projects), Development of technical guidelines/recommendations, Stakeholder engagement)

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve Advantages: which the options address the key policy objectives, in  To enhance innovation: Targeted funding of initiatives with certain the policy objectives) particular: requirements to the composition of project consortia, e.g. projects with o To increase (fair) competition in partners from research/development institutions, private companies, para- the Digital Single Market public bodies from transport and energy sector. o To contribute to research and  To make data more accessible: Funding of sector specific data portals (e.g. innovation reaching its full mobility clouds with data from different actors from the transport sector, potential central energy cloud like e.g. in Estonia or Austria as a central base for energy 304

Criterion Examples of elements to consider Main advantages / disadvantages o To contribute to the creation of data). jobs and better public services  To achieve synergy effects: Facilitate the networking of sector specific project o To reduce costs linked to either at local, regional level, or at European level. obtaining data and  Soft policy options create almost no additional cost burden for stakeholders administrative burden apart from own engagement in projects/development of guidelines in o To reduce legal, e.g. uncertainty stakeholder groups/awareness raising and partial financing of flagship projects. concerning specific data and Disadvantages: associated rights  Limited effect as para-public bodies decide whether and to what extent they o To ensure EU-wide access to make use of the offers (cost-benefit considerations). PSI-based services for citizens/consumers  No empowered position of (re-)users who require data from specific data holders. o To remove economic, technical and legal barriers  Economic, technical and legal barriers remain. No pressure to change the situation. Cross-border issues remain unsolved. Efficiency (i.e. cost-benefit  Main cost factors for various  No external pressure and therefore no severe extra costs for para-public balance) (public and private) stakeholders bodies.  Main benefits for various  Limited benefits for (re-)users: Benefits differ from member state to member stakeholders state, region to region, service area to service area (patchwork of approaches  Indicative relation between costs and service applications). and benefits  Contributes to a Europe of different speeds in the data economy. Some innovative Member States or multinational companies with solid resources will go ahead. Existing regional allocation patterns of innovations will be intensified. Technology of data (re-)use might even work as a trend intensifier and not as a trend inverter as regards regional disparities. Proportionality (i.e. extent  Assessment of whether the option  No legal requirements, therefore, proportionality safeguarded. to which the options are in goes further than what is needed, line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed 305

Criterion Examples of elements to consider Main advantages / disadvantages (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  Legal feasibility and coherence not affected – for the moment. coherence (i.e. extent to international law  No pressure to discuss legal foundations on EC level an in Member States to which the options are in line  EU Treaty objectives and promote data (re-)use. Problem of legal barriers only deferred - not solved. with legal requirements and requirements (e.g. on the  Possibility to allow regulatory exemptions for sandbox projects. coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  Not applicable because sound experience of EC and Member States to establish feasibility (i.e. practicalities implementation of the option, options like funding of initiatives, Communication and awareness raising (e.g. needed for the including e.g. the need to set up by flagship projects), Development of technical guidelines/recommendations, implementation, monitoring new IT tools and to what degree Stakeholder engagement. and enforcement) this is feasible  Stakeholder engagement in the area of standardisation and APIs probably low because cooperation across companies / borders / transport modes etc. not required by regulation. Political feasibility (i.e.  Extent to which the option is  Highly feasible, especially if funding by EC is provided. stakeholder support) politically sensitive  Defensive attitude of para-public bodies with severe historical organisational  Known positions of specific groups and technological legacies may be hard to overcome. of stakeholders

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Criterion Examples of elements to consider Main advantages / disadvantages Conclusion on feasibility of  Summarise the main findings, in  Highly feasible but limited long-term effects. the option particular noting whether the  Data availability limited to projects. option is relevant to be retained  Patchy regional coverage of services. for further analysis and whether it should be amended  Question of a multispeed open data market development in Europe inevitably arises. Member states have different resources for soft options available. Development of projects dependent on cooperation of para-public bodies, their technological legacies, innovative resources.

7.2.3 Regulatory policy options Extending the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU or on the basis of a concession, bodies and entities under the default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.)

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  High transparency in the respective utilities market fosters competition – for which the options address the key policy objectives, in the benefit of users but against profit maximisation of companies. Companies the policy objectives) particular: can no longer exclusively use their data to improve internal processes. o To increase (fair) competition in  Some companies might limit their data collection and gathering by sensors to the Digital Single Market avoid giving results to competitors. o To contribute to research and  Policy option with highest effect on research and innovation if data is available innovation reaching its full without limits. potential  Probably also highest impact on job creation and improvement of public o To contribute to the creation of services, especially in intermodal transport and waste management. jobs and better public services  Policy option with least costs for obtaining data by (re-)users. Relevant process o To reduce costs linked to costs and personnel costs for companies who have to take requests.

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Criterion Examples of elements to consider Main advantages / disadvantages obtaining data and  Small administrative burden for governments as all companies are affected in administrative burden the same manner and no ex-ante definition of companies affected needed by o To reduce legal, e.g. uncertainty rule-makers. concerning specific data and  EU-wide access to PSI-based services and nearly no limit to combine datasets. associated rights  Technical barriers remain and might become strategy to avoid data (re-)use. o To ensure EU-wide access to Removing technical barriers dependent on change of regulation concerning PSI-based services for APIs and standards. citizens/consumers  Legal barriers diminished, all data from utilities has to be made available unless o To remove economic, technical specific legal restrictions remain. and legal barriers  Policy option with the highest potential economic benefit to realise a data economy in the EU. Efficiency (i.e. cost-benefit  Main cost factors for various  Additional operational costs for providing meta data, APIs, data processing. balance) (public and private) stakeholders  Fear to reveal poor data quality to (re-)users and competitors lead to  Main benefits for various investments in sensors and data validation. stakeholders  Costs for legal counselling to avoid publishing data that is commercially  Indicative relation between costs sensitive (to others), personal data etc. and for compliance (poor data quality and benefits might reveal issues that go far back in time).  High costs for businesses affected but also high benefits for the general public and for (re-)users. Proportionality (i.e. extent  Assessment of whether the option  In principle, policy option is in line with proportionality requirements as to which the options are in goes further than what is needed, companies would only have to reveal datasets they already have (and not start line with what is needed to based on: collecting data because of (re-)user requests. achieve the policy o Scope of the option  Policy options with the broadest scope as regards data generators. objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  Legal challenge to set obligations to “entities acting in general economic coherence (i.e. extent to international law interest in the utilities sectors which are not public sector bodies” and which

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Criterion Examples of elements to consider Main advantages / disadvantages which the options are in line  EU Treaty objectives and are not legally controlled or mainly financed or solely contracted by the public with legal requirements and requirements (e.g. on the sector. coherent with other EU competences of the EU to adopt  Long term running contracts to fulfil tasks in the general economic interests policy objectives) specific types of instruments) with (private) companies had to be changed.  Fundamental rights  Secondary legislation would prevent certain datasets from publishing.  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  High costs for implementation, monitoring and enforcement on the side of feasibility (i.e. practicalities implementation of the option, contracting authority, i.e. often local authorities without personnel for these needed for the including e.g. the need to set up (additional) tasks. implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Political feasibility disputable. Political opposition expected from para-public stakeholder support) politically sensitive bodies and some Member States. Very extensive policy option with  Known positions of specific groups implications on companies in cross-ownership or interdependence with public of stakeholders stakeholders. Conclusion on feasibility of  Summarise the main findings, in  Problem of low influence on a large part of para-public bodies. the option particular noting whether the  Long transition time because new obligations can only be realized when option is relevant to be retained contracts are re-negotiated or new public tendering. for further analysis and whether it  If new obligations could be realised by renegotiated contracts seems to be should be amended questionable. Renegotiations needs long timeframes. During the process no

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Criterion Examples of elements to consider Main advantages / disadvantages progress in data (re-)use expected. Define a selection of such bodies, based on objective criteria (EU procurement legislation) and introduce a requirement to apply certain provisions of the Directive to the re-use of the data they hold (e.g. no requirement of cross-subsidies, no requirement related to the processing of requests, no requirement of free-of charge pricing)

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  Interest in publishing data for (re-)users and fear of competitors might be which the options address the key policy objectives, in balanced out by own gains of data sets to provide own enhanced services by the policy objectives) particular: using external datasets (win-win-situation for para-public companies). o To increase (fair) competition in  Policy option with high (and more realistic) effect on research and innovation. the Digital Single Market  High impact on jobs and improvement of public services, especially in o To contribute to research and intermodal transport and energy management. innovation reaching its full  Policy option with some costs for obtaining data by (re-)users as no free-of potential charge pricing. o To contribute to the creation of  However, some datasets might be available for free anyway if costs for jobs and better public services charging are higher than potential revenue from selling access to data. o To reduce costs linked to  If premium services (dynamic data, processed data, and validated data) are obtaining data and charged, competition will be fostered among data generators. Service administrative burden providers for prepared data might occur (job effects). o To reduce legal, e.g. uncertainty  EU-wide access to relevant PSI-based services and nearly no limit to combine concerning specific data and datasets. associated rights  Technical barriers remain but could more easily be handled within a certain o To ensure EU-wide access to sector. PSI-based services for citizens/consumers  Legal barriers diminished for relevant sector information. o To remove economic, technical  Policy option with high potential economic benefit to realise a data economy in and legal barriers the EU.

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Criterion Examples of elements to consider Main advantages / disadvantages Efficiency (i.e. cost-benefit  Main cost factors for various  Additional operational costs for providing meta data, APIs, data processing, but balance) (public and private) stakeholders not for every para-public body. Only relevant sectors affected.  Main benefits for various  Less fear to reveal poor data quality to (re-)users as competitors in the same stakeholders sector have to publish data as well. Potential intensive subject-matter  Indicative relation between costs discussions could lead to efficiency gains for all companies involved. and benefits  High costs for businesses affected but also high benefits for the general public and for (re-)users in most relevant sectors, e.g. energy and transport. Proportionality (i.e. extent  Assessment of whether the option  Policy option appears proportionate. to which the options are in goes further than what is needed,  Sector specific companies would only have to reveal datasets they already have line with what is needed to based on: (and not start collecting data because of (re-)user requests. achieve the policy o Scope of the option  Policy options with a broad scope as it applies to many data generators in a objectives) o Type of instrument proposed relevant sector. (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  High legal feasibility: Selection of such para-public bodies of a certain sector, coherence (i.e. extent to international law based on objective criteria (EU procurement legislation) and introduction of which the options are in line  EU Treaty objectives and requirements to apply certain provisions of the Directive already intensively with legal requirements and requirements (e.g. on the discussed and could be extended to the re-use of the data (probably with coherent with other EU competences of the EU to adopt limited effort). policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives

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Criterion Examples of elements to consider Main advantages / disadvantages o Trade Secrets Directive Practical and technological  Specific needs for the  Compared to other options, rather the same and no additional or more cost feasibility (i.e. practicalities implementation of the option, effective needs for implementation, monitoring, and enforcement. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Higher political feasibility because data applications might allow public bodies stakeholder support) politically sensitive to use them for own planning, contracting, etc. to gain cost savings.  Known positions of specific groups  Less strict regulation for para-public bodies and could lead to win-win- of stakeholders situations (use data from competitors for own planning or for regional extension or service improvements). Conclusion on feasibility of  Summarise the main findings, in  Relatively feasible and can be applied relatively fast. the option particular noting whether the option is relevant to be retained for further analysis and whether it should be amended Extend the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply.

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  Improvement compared to the status quo (baseline scenario). which the options address the key policy objectives, in  Comparatively high legal certainty as para-public bodies and their owners the policy objectives) particular: decide about their open data strategy. Possibility of implementing a rather o To increase (fair) competition in strict and limited regime but also an open data strategy the Digital Single Market  Possibility to develop business models based on data access and (re-)use

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Criterion Examples of elements to consider Main advantages / disadvantages o To contribute to research and regime for para-public bodies and third-party re-users. innovation reaching its full  Option is effective as it describes a realistic and sustainable scenario of potential combining economic benefits for the companies with data accessibility for re- o To contribute to the creation of use. jobs and better public services Disadvantages: o To reduce costs linked to  Data sets from para-public bodies still not available per default obtaining data and  Limited effect on job creation as companies still decide who can use their data administrative burden for which applications. o To reduce legal, e.g. uncertainty concerning specific data and  Software developers and application service providers face extensive associated rights negotiations with several para-public bodies to realise a vision of data re-use. o To ensure EU-wide access to  EU-wide access to data sets is still complicated and costly. PSI-based services for  Economic barriers remain (access to data and (re-)use options are limited. citizens/consumers  Limited market-driven technological improvements on interoperability and o To remove economic, technical standardisation of applications. Friction in data usage (transaction costs, and legal barriers information costs).  Effectiveness can be enhanced by combining this policy option with soft policy options (funding, stakeholder engagement, flagship projects etc.). Efficiency (i.e. cost-benefit  Main cost factors for various  No additional costs for para-public bodies to enable re-use. balance) (public and private) stakeholders  Para-public bodies can balance costs and benefits on a case-by-case, especially  Main benefits for various fully private companies stakeholders  Data sets can be made available to selected public or private stakeholders  Indicative relation between costs either by license contract or by open access. Re-use can be determined by the and benefits para-public body and optimized to the companies’ needs.  Almost no benefits for the users of utilities – still no reliable cross-company information. Proportionality (i.e. extent  Assessment of whether the option  Insufficient availability of public and tax-funded data for re-use, limiting the

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Criterion Examples of elements to consider Main advantages / disadvantages to which the options are in goes further than what is needed, potential of data-based innovation in the economy. line with what is needed to based on:  Scope limited, but sustainable as companies can decide. If data is made achieve the policy o Scope of the option available, full economic potential can be exploited. objectives) o Type of instrument proposed  Scope seems proportionate as regards private companies who are more (e.g. hard law vs. soft measures) exposed to competition and can better protect their strategic and commercially sensitive data. Legal feasibility and  Obligations arising from  No infringements because option is compliant with concessions and contracts. coherence (i.e. extent to international law  Overall, legal feasibility and coherence is assured. The status quo option is in which the options are in line  EU Treaty objectives and line with legal requirements and coherent with other EU policy objectives. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  Companies can use existing tools to make data available to software feasibility (i.e. practicalities implementation of the option, developers and provide own applications and data sources or arrange needed for the including e.g. the need to set up hackathons. No need for companies to set up new IT tools if they feel this is not implementation, monitoring new IT tools and to what degree to their own benefit, too. and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Overall, stakeholders (para-public bodies and their contracting entities, mostly

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Criterion Examples of elements to consider Main advantages / disadvantages stakeholder support) politically sensitive the local authorities) are probably in favour of this option as it resembles the  Known positions of specific groups status quo. It allows to implement open data strategies where useful for the of stakeholders own benefit and avoids additional costs. Conclusion on feasibility of  Summarise the main findings, in  Option seems most feasible, but limited economic effects. the option particular noting whether the option is relevant to be retained for further analysis and whether it should be amended Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use (including by entities in the utilities sectors, newly brought within the scope of the Directive).

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  Competitive disadvantages removed as all utilities are concerned. However, which the options address the key policy objectives, in smaller companies with less revenue might face additional cost burdens which the policy objectives) particular: in the end leads to market exists and more concentration in the utilities o To increase (fair) competition in landscape. the Digital Single Market  Effect to research and innovation limited compared to options where data is o To contribute to research and not specified. (Re-)users face a limited toolbox for developments. Requests by innovation reaching its full (re-)users to get access to additional data sets might be rejected by the potential companies with reference to the list of open by default datasets. o To contribute to the creation of  Legal uncertainties for companies reduced in one area, but not for similar or jobs and better public services comparable datasets. o To reduce costs linked to  Access to certain open by default datasets guaranteed for all EU citizens. obtaining data and  Legal barriers partly removed. administrative burden  Technical barriers (APIs, data formats) easier to handle and companies can o To reduce legal, e.g. uncertainty benefit from best practice examples. concerning specific data and 315

Criterion Examples of elements to consider Main advantages / disadvantages associated rights  Economic benefits rise compared to status quo as defined datasets are o To ensure EU-wide access to available everywhere in the EU free of charge. PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  High costs for establishing a conclusive enumeration of datasets and to keep balance) (public and private) stakeholders the list up to date to technical and organisational progress. For example, in  Main benefits for various telecommunications regulation the naming of innovative services was stakeholders abandoned as new services arise in a very dynamic way. The same might be true for definition of datasets.  Indicative relation between costs and benefits  Definition of a list of 'open by default' datasets might be “misunderstood” by para-public bodies and internal lists might be re-defined. Costs to find out about misuse of the definition.  A closed list, however brief, could reduce costs for para-public bodies and their contracting authority (esp. at local level) when examining legal coherence. Proportionality (i.e. extent  Assessment of whether the option  Regular revision of list for different sectors and areas of potential usage to which the options are in goes further than what is needed, induces costs. line with what is needed to based on:  Expenses would be too great compared to the innovative potential gained by achieve the policy o Scope of the option closed lists. Additional encouragement to open up other datasets as well would objectives) o Type of instrument proposed be needed. Combination with soft measures needed. (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  Member States could reject entire list or parts of it if data protected by coherence (i.e. extent to international law national law is concerned (probably relevant for health data, financial data, which the options are in line  EU Treaty objectives and personal data / personal data protection aspects related to the handling of with legal requirements and requirements (e.g. on the data in ITS applications) coherent with other EU competences of the EU to adopt  Regulatory option would stay behind INSPIRE regulation. policy objectives) specific types of instruments)  Issues on secondary legislation could be checked beforehand with e.g. 316

Criterion Examples of elements to consider Main advantages / disadvantages  Fundamental rights reference to protection of personal data, copyright, trade secrets etc.  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  Stakeholders will inevitably argue that some datasets included in the list are feasibility (i.e. practicalities implementation of the option, not to be made open because of practical and technological barriers. needed for the including e.g. the need to set up  Lengthy process for EC to define datasets that are available without implementation, monitoring new IT tools and to what degree investments in technology. and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Public stakeholders who are the contracting authority of para-public bodies stakeholder support) politically sensitive fear the costs of new requirements for these entities. In any case, whenever  Known positions of specific groups new contracts have to be agreed upon between a para-public body and a of stakeholders (local) public authority additional expenses for making datasets of the list (and necessary technical investments) may be claimed. Especially in local transport stakeholders seem to be very cost sensitive. Conclusion on feasibility of  Summarise the main findings, in  Stakeholders might find ways to circumvent requirements by re-defining data the option particular noting whether the sets, discuss items on the list each time the list is put under review. option is relevant to be retained  On the one hand, more feasible than other options (e.g. blanket coverage of all for further analysis and whether it datasets of para-public bodies) as the list can be defined by Member States should be amended with their para-public bodies involved.  On the other hand, tedious discussion of list contents may result in a very brief and potentially meaningless list of datasets.

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Criterion Examples of elements to consider Main advantages / disadvantages  Seems to be the least favourable regulatory option.

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7.2.4 Conclusions on the para-public bodies policy options

Data held by para-public bodies is considered to be of strategic public value and at the same time highly important for fostering innovations, especially in the energy sector and transport sector. Today, some energy or transport companies open up selected areas of data for re-use but this depends on their respective business strategy and on the overall open data strategy and regulation in each Member State. This leads to a fragmented availability of data which diminishes options for innovations in the field of, for example, energy consumption analysis and management or door-to-door/intermodal travel services, especially as regards cross-border solutions. The reasons why para-public bodies refrain from opening up their data sets are manifold: The very competitive markets prevent utilities operators for becoming open data first movers, companies as well as their PSB shareholders try to avoid additional costs, and operators fear to violate data protection and privacy provisions. Therefore, the intrinsic motivation to allow data re-use seems unlikely to change in near future. The best policy option is one that takes these barriers into consideration and enables Member States to extend their open data strategies to additional fields of activity. The aim should be to ensure a higher level of data access and re-use for third parties to enhance the supply of applications in the utilities sector for private and business users and at the same time to enable first mover companies to follow their open data strategies for their own advantage. In view of the above, the baseline scenario seems ineffective to enhance the development of innovative applications in the utilities sector. Non-regulatory options form an additional important aspect to strengthen existing companies numerous examples of initiatives and to enhance positive effects due to voluntary efforts to open up data for re-users, but are not likely to extend and increase the availability of data. As regards regulatory options, extending the scope of the PSI Directive to cover para-public bodies completely could be judged disproportionate. To be more proportionate with respect to the intended policy objectives, a limitation to entities carrying out public tasks under the procurement Directive 2014/25/EU might prove more effective. A policy option appears even more feasible, where the equal terms of the PSI Directive apply to all entities that decide to make some data available to use (e.g. in the energy and transport sector). This would be a substantial improvement compared to the achievements so far. This option increases the benefits for the European Data Economy while contributing to more innovative applications and leaving control over costs for an open data strategy to the stakeholders. Even though extending the scope of the PSI Directive further to include private entities carrying out public tasks on the basis of a concession would be more effective, this option also induces high cost burdens for the companies and their PSB contractors, and in the end, the customers. The best solution in this case is the combination of non-regulatory measures with moderate regulatory options which leave control over costs in the hands of the data providers.

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7.3 Charging for re-use 7.3.1 Baseline Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This policy option presents a number of advantages: which the options address the key policy objectives, in o Legal certainty is ensured as there is a continuation of the current rules and the policy objectives) particular: therefore stakeholders benefit from a stable regulatory environment (also o To increase (fair) competition in knowing that the 2013 legislative changes have not yet been entirely the Digital Single Market absorbed and that some Member States still do not have guidelines for o To contribute to research and charging) innovation reaching its full o There is no additional administrative burden for public sector bodies as they potential are/should already be compliant with the 2013 rules. o To contribute to the creation of o Rules for ensuring fair competition exist (charging at a marginal costs and jobs and better public services limited exceptions), but de facto re-users cannot all benefits from PSI to the o To reduce costs linked to same extent obtaining data and o Jobs and services can be created by those players and re-users who can administrative burden afford to pay the price of data when these are not provided for free or at a o To reduce legal, e.g. uncertainty marginal costs concerning specific data and  A number of disadvantages also exist: associated rights o Re-users with more limited resources have smaller access to the re-use of o To ensure EU-wide access to data than bigger players who can afford to pay higher prices. Therefore, PSI-based services for competition is not entirely fair. citizens/consumers o Research and innovation in Europe does not reach its full potential as some o To remove economic, technical data are inaccessible for less resourced players. and legal barriers o Creation of jobs and better public services cannot be achieved to the full extent as certain data remain inaccessible to re-users due to price. o There is a certain extent of legal uncertainty as guidelines for charging above 320

Criterion Examples of elements to consider Main advantages / disadvantages marginal costs different from country to country o EU-wide access to PSI is hampered by the differences in charging between Member States and within the same Member State.  Therefore, to achieve a fully functioning digital single market and unlock the data potential, this policy option would not be fully effective. Efficiency (i.e. cost-benefit  Main cost factors for various  This policy option would have no benefits nor costs for the public sector (it balance) (public and private) stakeholders would be neutral as the costs associated to the implementation of the PSI  Main benefits for various Directive should not be accounted for here). stakeholders  This policy option would entail opportunity costs for the EU society: since some  Indicative relation between costs datasets would be “de facto” locked by price, their full economic value for the and benefits European economy could not be exploited by all interested re-users.  Therefore, if one compares the zero costs and benefits for the PSBs with the opportunity costs for re-users, the balance is negative as costs are greater than benefits for the society overall. Proportionality (i.e. extent  Assessment of whether the option  This option would be proportionate as it would represent the continuation of to which the options are in goes further than what is needed, the status quo and would not entail additional efforts for implementation to line with what is needed to based on: any stakeholders. achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is be legally feasible. coherence (i.e. extent to international law  No issue in terms of coherence with primary or secondary legislation (or with which the options are in line  EU Treaty objectives and international obligations) could be identified at this stage. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights

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Criterion Examples of elements to consider Main advantages / disadvantages  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option is practically and technologically feasible. feasibility (i.e. practicalities implementation of the option,  No practical or technological barriers could be identified at this stage. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option is political feasible. stakeholder support) politically sensitive  All stakeholders’ communities generally support the idea of leaving the  Known positions of specific groups charging rules untouched for this review round of the Directive also considering of stakeholders that these have not been fully implemented yet by Member States (e.g. charging guidelines are still missing in a number of EU countries). Some stakeholders also highlighted that the focus at the moment should be on ensuring that existing rules are correctly implemented rather than establishing new rules. Conclusion on feasibility of  Summarise the main findings, in  This option is politically, technologically, legally and practically feasible. the option particular noting whether the  However, its effectiveness in terms of desired outcome and efficiency are option is relevant to be retained questionable as it could not ensure a fairer level playing field for re-users. for further analysis and whether it should be amended

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7.3.2 Non regulatory policy options Communication and awareness raising

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This option would have a limited number of advantages: which the options address the key policy objectives, in o It would reduce legal uncertainty through increasing awareness of charging the policy objectives) particular: rules and practices amongst the re-users o To increase (fair) competition in o It could contribute to research and innovation through increased awareness the Digital Single Market of charging rules amongst universities and research oriented re-users o To contribute to research and o It would help removing legal barriers through a better understanding of the innovation reaching its full legal framework potential o Also through better understanding, it could help reducing administrative o To contribute to the creation of burden for both public sector bodies and re-users jobs and better public services o Due to all the possible improvements in awareness and understanding o To reduce costs linked to above, it could contribute to the creation of jobs and new services obtaining data and  This option would have a number of disadvantages: administrative burden o It would not address the issues related to the competition in the Digital o To reduce legal, e.g. uncertainty Single Market concerning specific data and associated rights o It would not directly reduce costs linked to obtaining data o To ensure EU-wide access to o It would not directly ensure EU-wide access to PSI based services to all PSI-based services for citizens and consumers citizens/consumers o It would not remove economic barriers o To remove economic, technical  Therefore, this option would not be entirely effective in directly addressing the and legal barriers problems related to charging although it could contribute to increase stakeholders’ awareness about this issue and disseminate best practices on how to address them. Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail some costs for the public sector (at the EU level) in balance) (public and private) stakeholders order to establish and launch communication and awareness raising campaign

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Criterion Examples of elements to consider Main advantages / disadvantages  Main benefits for various across the EU. stakeholders  This option would not entail costs for re-users.  Indicative relation between costs  The main benefits from this option would be: and benefits o Increased awareness and understanding of charging rules from PSBs leading to more transparent and fairer practices o Increased awareness and understanding of charging rules from re-users leading to more services developed and more research and innovation o Reduction in the administrative burden for all categories of stakeholders  Based on the list of costs and benefits above, it can be argued that this option is efficient as it allows a reasonable return in investment. The costs would be borne at the EU level while the benefits would be reaped at the level of PSBs and re-users. Proportionality (i.e. extent  Assessment of whether the option  This option is proportionated as it does not require implementation efforts to to which the options are in goes further than what is needed, any of the stakeholders except the EU level. line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is legally feasible. coherence (i.e. extent to international law  No issue in terms of coherence with primary or secondary legislation (or with which the options are in line  EU Treaty objectives and international obligations) could be identified at this stage. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs.

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Conclusion on feasibility of  Summarise the main findings, in  This option is technically, legally, politically and economically feasible. the option particular noting whether the  With minimum efforts and investments it would be possible to improve the option is relevant to be retained current situation through increasing awareness between stakeholders on for further analysis and whether it charging rules and reducing administrative burden. should be amended  However, this option could not fix all economic barriers and could not entirely ensure fairness and competition within the market as the costs of data will remain a market entry barrier for a number of players. This will have an effect in terms of under exploitation of the value of data and less creation of jobs and services.

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Development of guidelines and recommendations

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This option would have a limited number of advantages: which the options address the key policy objectives, in o It would reduce legal uncertainty through increasing awareness of charging the policy objectives) particular: rules amongst the re-users (thanks to guidelines) and through adoption of o To increase (fair) competition in recommended practices the Digital Single Market o It could contribute to research and innovation through increased awareness o To contribute to research and of charging rules amongst universities and research oriented re-users and innovation reaching its full through implementation of recommended practices at the PSBs level potential o It would help removing legal barriers through a better understanding of the o To contribute to the creation of legal framework and the implementation of recommended practices jobs and better public services o Also through better understanding and implementation of recommended o To reduce costs linked to practices, it could help reducing administrative burden for both public sector obtaining data and bodies and re-users administrative burden o Due to all the possible improvements above, it could contribute to the o To reduce legal, e.g. uncertainty creation of jobs and new services concerning specific data and  This option would have a number of disadvantages: associated rights o It would not address the issues related to the competition in the Digital o To ensure EU-wide access to Single Market (as guidelines and recommendations would not be binding PSI-based services for and PSBs could always chose not to follow them). citizens/consumers o It would not directly reduce costs linked to obtaining data (due to the non- o To remove economic, technical binding nature of recommendations and guidelines) and legal barriers o It would not directly ensure EU-wide access to PSI based services to all citizens and consumers o It would not remove economic barriers (due to the non-binding nature of recommendations and guidelines)  Therefore, this option would not be entirely effective in directly addressing the problem related to charging although it could contribute to guide public sector bodies in the definition of their charging practices and disseminate best 326

Criterion Examples of elements to consider Main advantages / disadvantages practices on how to address them. Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail very limited costs for the public sector (at the EU level) balance) (public and private) stakeholders in order to develop the guidelines and recommendations.  Main benefits for various  This option would not entail costs for re-users. stakeholders  The main benefits from this option would be:  Indicative relation between costs o Increased adoption of best practices and suggested approaches in terms of and benefits charging rules from PSBs leading to more transparent and fairer practices o Increased awareness and understanding of charging rules from re-users (thanks to guidelines) leading to more services developed and more research and innovation o Reduction in the administrative burden for all categories of stakeholders  Based on the list of costs and benefits above, it can be argued that this option is efficient as it allows to reap some benefits with a very limited initial investment. The costs would be borne at the EU level while the benefits would be reaped at the level of PSBs and re-users. Proportionality (i.e. extent  Assessment of whether the option  This option is proportionated as it does not require implementation efforts to to which the options are in goes further than what is needed, any of the stakeholders except the EU level. line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is legally feasible. coherence (i.e. extent to international law  No issue in terms of coherence with primary or secondary legislation (or with which the options are in line  EU Treaty objectives and international obligations) could be identified at this stage. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)

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Criterion Examples of elements to consider Main advantages / disadvantages  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option is practically and technologically feasible. feasibility (i.e. practicalities implementation of the option,  No practical or technological barriers could be identified at this stage. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option is politically feasible. stakeholder support) politically sensitive  Stakeholders (both amongst the Member States and the re-users) are in need  Known positions of specific groups of guidance on charging and they would benefit from recommendations and of stakeholders examples of best practices.

Conclusion on feasibility of  Summarise the main findings, in  This option is technically, legally, politically and economically feasible. the option particular noting whether the  With minimum efforts and investments it would be possible to improve the option is relevant to be retained current situation through better guidance for stakeholders and thanks to a set for further analysis and whether it of recommendations on how to implement effectively charging rules. should be amended  However, this option could not fix all economic barriers and could not entirely ensure fairness and competition within the DSM due to its non-binding nature. This will have an effect in terms of under exploitation of the value of data and less creation of jobs and services.

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7.3.3 Regulatory policy options Introduce free of charge re-use as the only rule for all documents covered by the Directive

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option would be have a number of advantages in terms of which the options address the key policy objectives, in effectiveness: the policy objectives) particular: o It would increase the possibility for start-ups and SMEs (and in general less o To increase (fair) competition in resourceful players) to re-use valuable data and hence it would increase fair the Digital Single Market competition in the single market. o To contribute to research and o It would help promoting research and innovation through allowing re-use of innovation reaching its full data for free also to universities and research centres. potential o It would help reducing costs linked to obtaining data for re-users and it o To contribute to the creation of would limit administrative burden for public sector bodies (as no jobs and better public services determination of charging would be needed) o To reduce costs linked to o It would lead to the establishment of more services and therefore more obtaining data and jobs, based on increased re-usability of data. administrative burden o It would reduce legal uncertainty as there would be a clear obligation for all o To reduce legal, e.g. uncertainty public sector bodies concerned. concerning specific data and o It would promote EU-wide access to PSI services to lowering costs barriers associated rights for re-users from different Member States (that is to say that disadvantaged o To ensure EU-wide access to re-users from disadvantaged Member States will have the same possibility PSI-based services for of re-using data of richer players). citizens/consumers o It would remove a high amount of legal and economic barriers to re-use of o To remove economic, technical data. and legal barriers  There would also be a limited number of disadvantages: o Revenue generated models for public sector bodies will have to be replaced with reliance on public funding only and sufficient budget should be

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Criterion Examples of elements to consider Main advantages / disadvantages allocated to this substitution of funding. Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail certain costs for public sector bodies: balance) (public and private) stakeholders o A loss of revenue related to charging for those PSBs who still apply charges.  Main benefits for various These PSBs represents, in general, a minority, even amongst cultural stakeholders institutions.  Indicative relation between costs o The need to substitute charging generated funding with public funding in a and benefits number of cases.  This option would entail a number of benefits for stakeholders: o Increased re-use of datasets o Increased number of services and jobs generated by re-users o Increased economic value generated by re-users o Increased efficiency of the public sector bodies  The relation between costs and benefits is positive for the overall society although for public sector bodies concerned the question of how charging generated funding can be substituted with public funding is not trivial. Indeed, efficiency wise, it is clear that benefits are greater than costs as also proven by the academic literature. However, the issue comes from the fact that benefits would be for the entire society while a small number of PSBs would have to bear the costs without getting direct economic value in return. Therefore, moving towards a zero fee approach is ultimately a political choice. Proportionality (i.e. extent  Assessment of whether the option  This sub-option is moderately proportional: to which the options are in goes further than what is needed, o Intervention is needed from the European Union to achieve a level-playing line with what is needed to based on: field for the re-use of data and avoid distortion in competition. achieve the policy o Scope of the option o Given the current trend toward charge reduction, one could argue that the objectives) o Type of instrument proposed same objective could be achieved (to a similar extent) through other (non- (e.g. hard law vs. soft measures) legislative) measures although in a longer time-frame. Legal feasibility and  Obligations arising from  This sub-option is legally feasible and coherent with the EU primary and

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Criterion Examples of elements to consider Main advantages / disadvantages coherence (i.e. extent to international law secondary legislation, as well as with international obligations: no barriers to which the options are in line  EU Treaty objectives and feasibility and coherence could be identified in this respect. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  There are no technical barriers related to the implementation of this sub- feasibility (i.e. practicalities implementation of the option, option. needed for the including e.g. the need to set up  Practical barriers might concern the need to replace revenue generated implementation, monitoring new IT tools and to what degree funding with public funding. This might entail that budgetary arrangements are and enforcement) this is feasible found for the public sector bodies concerned. Nonetheless, these practical barriers do not affect the feasibility of the sub-option overall. Political feasibility (i.e.  Extent to which the option is  This sub-option is politically sensitive. stakeholder support) politically sensitive  The majority of Member States agrees in principle, that making data re-usable  Known positions of specific groups for free increases the benefits for the overall society. However, the question is of stakeholders how to replace revenue generated through charging for data with public funding.  Some national stakeholders also argued that shifting away from the charging model would mean having citizens paying twice for a service (the re-usability of

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Criterion Examples of elements to consider Main advantages / disadvantages data) which benefits companies who will make money out of data re-use. Hence, the public sector bodies should not invest in this service but rather provide it against remuneration when it has a value.  Cultural institutions favour this sub-option only moderately as they fear a decrease in their revenue which could not be compensate by any other source of funding. In a situation in which resources are already stretched, this constitutes a serious problem.  Re-users on the other hand would be definitely more in favour of moving towards zero fee approach. However, it must be noted that certain incumbents favour the maintenance of charges as these represent market entry barriers for smaller players (see the example of business registers in Belgium).  Therefore, this sub-option seems difficult to adopt at this stage at least in absence of clear political decision on how the loss of revenue for the PSBs concerned would be replaced and by whom. If Member States agree to free up other public resource to this purpose, feasibility could nonetheless be ensured. Conclusion on feasibility of  Summarise the main findings, in  This option would be very effective in ensuring a level-playing field for re-users the option particular noting whether the and helping SMEs and start-ups to grow. option is relevant to be retained  There is also a wide-spread acceptance, amongst stakeholders, of the relation for further analysis and whether it between abandoning charges and multiplying the data-reuse benefits for the should be amended economy.  However, some issues in terms of political feasibility must be raised. Although only a very limited number of the total PSBs still charge for re-use of data, a solution for substituting this revenue with public funding is needed to move to a zero fee sub-options. Once again, this concerns a very limited budgetary allocation per year (e.g. 6.3 million EUR in Hungary or 150 000 EUR in the case of Belgian business registers) but the political debate remains.

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Amend article 6 to strengthen the default rule of free of charge re-use and get rid of exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c).

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option would have a number of advantages in terms of effectiveness: which the options address the key policy objectives, in o Competition in the Digital Single Market would be increased as more the policy objectives) particular: datasets would be available for re-use for free (although the number of o To increase (fair) competition in datasets covered by article 6.2 are a minority) or at a more limited costs (for the Digital Single Market the other two exceptions, in case eligible costs are reduced). o To contribute to research and o Research and innovation would also be better supported and there could be innovation reaching its full an increase in terms of services and jobs created thanks to the availability potential for free or at a reduced costs of these datasets. o To contribute to the creation of o Costs linked to obtaining data could be brought to zero for datasets falling jobs and better public services under article 6.2 and could be reduced for the other two exceptions if o To reduce costs linked to eligibility of costs is made more restrictive. obtaining data and o It would promote EU-wide access to PSI services to lowering costs barriers administrative burden for re-users from different Member States (that is to say that disadvantaged o To reduce legal, e.g. uncertainty re-users from disadvantaged Member States will have the same possibility concerning specific data and of re-using data of more resourceful players). associated rights o Administrative burden could be reduced through deletion of article 6.2 o To ensure EU-wide access to o A number of economic barriers would be removed or lowered. PSI-based services for  There are also a number of disadvantages: citizens/consumers o The abolishment of article 6.2 only would still not lead to a level playing field o To remove economic, technical for smaller players which would still pay for re-use of a number of other and legal barriers datasets. o The costs for re-use of the datasets for which exceptions would still apply (although lowered) will continue preventing research and innovation from reaching its full potential o There would be a degree of legal uncertainty and administrative burden as two exceptions will continue to exist but with new rules in terms of eligibility 333

Criterion Examples of elements to consider Main advantages / disadvantages of costs. o A number of economic and legal barriers would persist.  Therefore, this sub-option is still better than the baseline but would cannot entirely ensure the full achievement of all objectives put forward in the objective tree. Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail certain costs for public sector bodies: balance) (public and private) stakeholders o A loss of revenue for public sector bodies related to the deletion of article  Main benefits for various 6.2 which actually allows PSBs concerned to charge above the marginal cost. stakeholders o A loss of revenue for public sector bodies related to the increased  Indicative relation between costs restrictiveness of rules on eligibility for the other two exceptions. and benefits o The need to substitute charging generated funding (completely in case of article 6.2 and partially for the other two articles) with public funding for continuing to ensure the re-use of these datasets.  This option would entail a number of benefits for stakeholders: o Increase in re-use of datasets currently falling under article 6.2 o Increase in re-use of datasets falling under the other two exceptions o Increased number of services and jobs generated by re-users based on further re-usability of these datasets (thanks to deleting or lowering cost barriers) o Increased economic value generated by re-users based on these datasets o Increased efficiency of the public sector bodies based on these datasets  Overall, this sub-option is still efficient as benefits coming from the further re- use of datasets for which the exemption does not apply anymore are still greater than the costs for the PSBs concerned. Proportionality (i.e. extent  Assessment of whether the option  This option is proportionate. to which the options are in goes further than what is needed, o This sub-option is proportionate in terms of scope of intervention. line with what is needed to based on: o The abolishment/modification of the exceptions laid down in the Directive

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Criterion Examples of elements to consider Main advantages / disadvantages achieve the policy o Scope of the option can only happen through legislative measures. No soft measures could objectives) o Type of instrument proposed achieve the same objective. (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This sub-option is legally feasible and coherent with the EU primary and coherence (i.e. extent to international law secondary legislation. which the options are in line  EU Treaty objectives and  No issues in terms of legal feasibility and coherence could be identified at this with legal requirements and requirements (e.g. on the stage. coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  There are no technical barriers related to the implementation of this sub- feasibility (i.e. practicalities implementation of the option, option. needed for the including e.g. the need to set up  Practical barriers might concern the need to replace revenue-generated implementation, monitoring new IT tools and to what degree funding (for the datasets and institutions which were benefitting from the and enforcement) this is feasible exceptions abolished or modified) with public funding. This might entail that budgetary arrangements are found for the public sector bodies and datasets concerned. Nonetheless, these practical barriers do not affect the feasibility of the sub-option overall. Political feasibility (i.e.  Extent to which the option is  This sub-option is moderately politically sensitive.

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Criterion Examples of elements to consider Main advantages / disadvantages stakeholder support) politically sensitive  Member States are moderately in favour of reducing and clarifying the number  Known positions of specific groups of exceptions to the marginal cost rule. In particular, the exception concerning of stakeholders the exemption of documents seems to be rarely used and its abolishment could be envisaged.  Re-users are also moderately supportive of this sub-option as it goes in the direction of reducing the possibilities for PSBs to charge higher than marginal costs for the re-use of data.  Therefore this sub-option seems politically feasible at this stage being also less sensitive than the two other legislative sub-options. Conclusion on feasibility of  Summarise the main findings, in  This option would be effective in improving the current situation and lowering the option particular noting whether the economic barriers for the re-use of data. option is relevant to be retained  Costs for PSBs would exist but would be limited in magnitude as article 6.2 for further analysis and whether it exception is rarely used. should be amended  The option is legally, technologically, practically and also politically feasible.

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Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use by the entities to which the Directive applies.

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option would be have a number of advantages in terms of which the options address the key policy objectives, in effectiveness: the policy objectives) particular: o It would increase the possibility for start-ups and SMEs (and in general less o To increase (fair) competition in resourceful players) to re-use valuable data from these key identified the Digital Single Market datasets (e.g. meteorological datasets, geospatial information etc.) and o To contribute to research and hence it would increase fair competition in the single market. innovation reaching its full o It would help promoting research and innovation through allowing re-use of potential a number of datasets for free also to universities and research centres. o To contribute to the creation of o It would help reducing costs linked to obtaining valuable data for re-users jobs and better public services o It would lead to the establishment of more services and therefore more o To reduce costs linked to jobs, based on increased re-usability of these key datasets. obtaining data and o If a precise list of dataset would be drawn, it would reduce legal uncertainty administrative burden as there would be a clear obligation for all public sector bodies concerned to o To reduce legal, e.g. uncertainty provide these datasets for free. concerning specific data and o It would promote EU-wide access to PSI services to lowering costs barriers associated rights for re-users from different Member States (that is to say that disadvantaged o To ensure EU-wide access to re-users from disadvantaged Member States will have the same possibility PSI-based services for of re-using data of more resourceful players). citizens/consumers o It would remove some legal and economic barriers to re-use of data. o To remove economic, technical  There are two main disadvantages that can be identified at this stage: and legal barriers o Not all economic barriers to re-use of data would be removed: it would still be possible to charge for a number of datasets which are not in the list. o The establishment of a list of datasets to be provided for free poses some risks in terms of fair competition, legal uncertainty and administrative burden. Indeed, A) a constant update of this list would be needed to continue having positive effects. Indeed, nothing prevents a today non- 337

Criterion Examples of elements to consider Main advantages / disadvantages valuable datasets to become extremely key tomorrow. B) Legal certainty for stakeholders might be lesser than in the case of other sub-options, as both PSBs and re-users would have to verify on a case by case basis whether a certain datasets belongs to the list of not. Definition of what each datasets need to contain might also be difficult and lead to discrepancies in the PSBs’ approaches. Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail certain costs for public sector bodies: balance) (public and private) stakeholders o A loss of revenue related to charging at or above the marginal costs for  Main benefits for various those PSBs who still apply charges for these key datasets. It can be imagined stakeholders that the datasets list would contain very valuable datasets (geo-spatial,  Indicative relation between costs business registers etc.) for which PSBs frequently charged. Therefore, in this and benefits case a majority of PSBs dealing with these pivotal datasets would be concerned (although these PSBs would be a minority compared to the overall number of PSBs to which the Directive applies). o The need to substitute charging generated funding with public funding for continuing to ensure the re-use of these datasets. One of the stakeholders consulted argued that, in case of high quality datasets such as those considered here, “providing the datasets for free means providing no datasets” unless alternative sources of funding are used. o The need to monitor the key list of datasets and deploy efforts for negotiating changes when an update is needed.  This option would entail a number of benefits for stakeholders: o Increased re-use of key datasets o Increased number of services and jobs generated by re-users based on these key datasets o Increased economic value generated by re-users based on these key datasets o Increased efficiency of the public sector bodies based on these key datasets

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Criterion Examples of elements to consider Main advantages / disadvantages  It is worth noting here that the key datasets considered for this sub-option are those having the greatest value from both PSBs (in terms of monetisation) and re-users. The balance between costs and benefits is once more overall positive for the society but it must be acknowledged that PSBs would lose in this case the biggest source of revenue within the domain of charging for re-use of data. Proportionality (i.e. extent  Assessment of whether the option  This sub-option is proportionate to the policy objectives as it limits the changes to which the options are in goes further than what is needed, in terms of charging to those key datasets which are really valuable and could line with what is needed to based on: even be considered as a “European key data infrastructure” (similarly to the achieve the policy o Scope of the option approach taken by the INPSIRE Directive). objectives) o Type of instrument proposed  Given the economic value of these datasets it is very unlikely that the same (e.g. hard law vs. soft measures) results could be achieved through non-regulatory measures and PSBs might not be willing to give up on this source of revenue. Legal feasibility and  Obligations arising from  This sub-option is legally feasible and coherent with the EU primary and coherence (i.e. extent to international law secondary legislation. which the options are in line  EU Treaty objectives and  Minor issues of coherence with the INSPIRE Directive might arise if the text is with legal requirements and requirements (e.g. on the not modified in accordance with INSPIRE based rules for geospatial datasets. coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive

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Criterion Examples of elements to consider Main advantages / disadvantages Practical and technological  Specific needs for the  There are no technical barriers related to the implementation of this sub- feasibility (i.e. practicalities implementation of the option, option. needed for the including e.g. the need to set up  Practical barriers might concern the need to replace revenue generated implementation, monitoring new IT tools and to what degree funding (for these key datasets) with public funding. This might entail that and enforcement) this is feasible budgetary arrangements are found for the public sector bodies and key datasets concerned. Nonetheless, these practical barriers do not affect the feasibility of the sub-option overall.  Other practical barriers would concern the need to keep the list updated (which would entail some efforts in terms of monitoring of the situation). Nonetheless, these do not affect the overall feasibility of the solution. Political feasibility (i.e.  Extent to which the option is  This sub-option is politically sensitive. stakeholder support) politically sensitive  Member States showed a moderate support for the establishment of such a list  Known positions of specific groups of key datasets. Some argued that this approach could facilitate the re-use of stakeholders while other expressed some doubts because of its complexity.  Similarly, stakeholders are split on this subject along the same lines of reasoning of the Member States.  Overall, this sub-option seems politically feasible as there could be a potential majority of stakeholders in favour. Conclusion on feasibility of  Summarise the main findings, in  This sub-option would be better off than the baseline scenario. However, it the option particular noting whether the would not solve all economic barriers to-reuse and it would entail a loss of option is relevant to be retained revenue for PSBs as well as some practical costs for implementation. for further analysis and whether it  This sub-option is technologically, legally, practically and possibly also politically should be amended feasible.

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7.3.4 Conclusions on the charging for re-use policy options

As illustrated in the evaluation section of this report, the marginal cost rule of the PSI Directive already had positive effects on the problems linked to cost of data. Nonetheless, price is still a barrier to re-use for certain categories of stakeholders and policy makers should at least attempt to further lower the impact of this issue if not to remove it completely. The analysis of the sub-options on charging brings to the conclusions that not all of them would be equally effective and useful in achieving these objectives. In particular:

 The Baseline (no action) policy option would not help in pushing or incentivizing public sector bodies to further reduce charges and price of data below the marginal cost rule currently applicable. Although this policy option would have the advantage of not imposing new administrative burden to stakeholder, it could not guarantee that the problems related to costs of data would naturally decrease over time. On the contrary, one can doubt that this would happen without further external intervention.  The non-regulatory policy options presents some benefits and especially with respect to the sharing of best practices related to charging and to the increase in the awareness of the main stakeholders. However, once more they would not be sufficient for removing the remaining barriers linked to cost of data as they would not establish a sufficient push for transforming the practices of the Public Sector Bodies concerned.  If the baseline and the non-regulatory options do not seem adequate solutions for the problem identified, the attention must turn to the three regulatory policy options. Based on the analysis provided in this chapter, two approaches seems relevant: on the one hand, the European Commission could adopt a “hard regulatory approach” and consider the introduction of a free of charge re-use rules for all information covered by the Directive. As explained in the previous sections, this option would have the advantage of eradicating all problems related to costs of data but it would also impose additional administrative burden to the Public Sector Bodies concerned. On the other hand, the European Commission could decide to adopt a “lighter regulatory approach” and to combine the remaining two regulatory options (which are not mutually exclusive). The lighter regulatory intervention would then aim at strengthening the existing rules, further limiting exceptions, specifying eligibility costs and establishing a list of “open by default” datasets via secondary legislation. This second approach would have the benefit of effectively addressing most of the problems identified while limiting the burden on PSBs and leaving them a marge of flexibility. To conclude, since the baseline and the non-regulatory policy options are considered as insufficient to achieve the identified policy objectives, only the regulatory policy options should be retained for further analysis and consolidated in policy packages as described in Chapter 8.

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7.4 APIs and dynamic data 7.4.1 Baseline Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  As more and more data are made available, there is growing evidence that which the options address the key policy objectives, in format and distribution will remain among the main barriers to achieve the key the policy objectives) particular: policy objectives listed beside. o To increase (fair) competition in  A baseline option would leave those issues open and mainly dependent to the Digital Single Market other factors such as market dynamics and private sector initiatives, hindering o To contribute to research and the possibility to progress toward fair competition, and to contribute to innovation reaching its full innovation. potential o To contribute to the creation of jobs and better public services o To reduce costs linked to obtaining data and administrative burden o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  In the case of a baseline option, increase of benefits to both private and public balance) (public and private) stakeholders bodies might remain at the current pace, which is much lower than expected,  Main benefits for various whereas the difference on costs will be negligible as public sector bodies will

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Criterion Examples of elements to consider Main advantages / disadvantages stakeholders still have to pay for their IT systems (either for maintenance costs, new  Indicative relation between costs licenses, updates, etc. ). and benefits Proportionality (i.e. extent  Assessment of whether the option  No issues concerning proportionality could be detected. to which the options are in goes further than what is needed, line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This sub-option is legally feasible as it represents the continuation of the status coherence (i.e. extent to international law quo. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option is practically and technologically feasible. feasibility (i.e. practicalities implementation of the option, needed for the including e.g. the need to set up 343

Criterion Examples of elements to consider Main advantages / disadvantages implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Not addressing API and dynamic data in a new revision of the Directive may be stakeholder support) politically sensitive considered politically sensitive and may send the wrong message as it is now  Known positions of specific groups recognized as one of main barriers to open data by the private, public sectors of stakeholders and academia. Conclusion on feasibility of  Summarise the main findings, in  It is relevant to retain the baseline option but only for further analysis in order the option particular noting whether the to consider the implication this would have to external and other factors such option is relevant to be retained as market, or sector specific regulations. for further analysis and whether it should be amended

7.4.2 Non regulatory policy options Funding of initiatives

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  The adoption of APIs, open and machine-readable formats as well as metadata which the options address the key policy objectives, in is primarily a question of software and protocol as well as people and the policy objectives) particular: organizations who develop and use them. Therefore, supporting the o To increase (fair) competition in development of the right infrastructures and processes underlying those the Digital Single Market standards would have the advantage to drive their adoption in a soft but efficient way. o To contribute to research and innovation reaching its full  In particular, funding initiatives that support open data standards, as well as potential related design process would increase faire competition among re-users, while o To contribute to the creation of reducing costs for public sector bodies making their data available. jobs and better public services  Existing EU-wide funding initiatives such as the Connecting Europe Facility and o To reduce costs linked to Horizon 2020 might be good vehicles for such investments.

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Criterion Examples of elements to consider Main advantages / disadvantages obtaining data and  Member States should be also encourage to fund research and initiatives in this administrative burden area; o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  The efficiency of this option would depend on the success of funded initiatives balance) (public and private) stakeholders and whether or not they respond to public sector bodies and re-user needs in  Main benefits for various terms of data format and distribution (for instance, an obvious example would stakeholders be the funding of an initiative for the development of a new standard, when there is already a de facto standard, would be inefficient). The selection criteria  Indicative relation between costs should be therefore, adequately defined. and benefits Proportionality (i.e. extent  Assessment of whether the option  This option is proportionate as it respond to the policy objective without to which the options are in goes further than what is needed, adding an additional burden on all public sector bodies. line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is legally feasible, no issues related to coherence could be identified coherence (i.e. extent to international law at this stage. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives)

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Criterion Examples of elements to consider Main advantages / disadvantages specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option would explicitly target the development of tools and standards, feasibility (i.e. practicalities implementation of the option, reducing technical barriers. needed for the including e.g. the need to set up  This option is practically and technologically feasible. implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option is not politically sensitive. stakeholder support) politically sensitive  Known positions of specific groups of stakeholders Conclusion on feasibility of  Summarise the main findings, in  This option of funding initiatives, if properly designed, could effectively address the option particular noting whether the technical barriers in a proportionate and efficient manner. option is relevant to be retained  However, taken alone, its effectiveness would be limited to funded initiatives for further analysis and whether it only. Therefore, this option should be consider in combination with other non- should be amended regulatory or regulatory options listed below, in particular for sectors or datasets where potential value is high.

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Communication and awareness raising

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  Communication and awareness raising seems to be particularly relevant in which the options address the key policy objectives, in view of current level of awareness of administration regarding API and the policy objectives) particular: dynamic data, and the need for the public sector to adapt; o To increase (fair) competition in  As put by one PSI expert, the main obstacle to the adoption of API, the Digital Single Market dynamic data and other more autonomous way of exchanging information o To contribute to research and is often the fear from administrations to lack control and power over the innovation reaching its full delivery of public services, and in the end becoming redundant; potential  As seen in Estonia, or France, API and access to dynamic data are not only o To contribute to the creation of useful for external data re-users but also within administrations jobs and better public services themselves, making it possible to showcase benefits and positives impacts o To reduce costs linked to and reducing concerns; obtaining data and administrative burden o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  Communication and awareness raising should be considered as an investment balance) (public and private) stakeholders cost for the Commission, spread throughout initiatives addressing transition to  Main benefits for various digital public services; stakeholders  Indicative relation between costs

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Criterion Examples of elements to consider Main advantages / disadvantages and benefits Proportionality (i.e. extent  Assessment of whether the option  The communication and awareness raising strategy should be designed in a to which the options are in goes further than what is needed, proportionate manner, so as to primarily target the right stakeholders, line with what is needed to based on: including public sector bodies producing dynamic or high value data, software achieve the policy o Scope of the option publishers, and data re-users, and in line with other EU initiatives addressing objectives) digital public services. o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is in line with the current legal and regulatory framework. coherence (i.e. extent to international law which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  There is no specific technical needs for the implementation of this option. feasibility (i.e. practicalities implementation of the option, needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible

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Criterion Examples of elements to consider Main advantages / disadvantages Political feasibility (i.e.  Extent to which the option is  This option does not appear to be politically sensitive. stakeholder support) politically sensitive  Known positions of specific groups of stakeholders Conclusion on feasibility of  Summarise the main findings, in  Communication and awareness raising should be retained and considered for the option particular noting whether the further analysis, but in combination with other non-regulatory options such as option is relevant to be retained development of guidelines, resources and cross-support. for further analysis and whether it should be amended

Development of technical guidelines

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  The development and communication of technical guidelines would be a which the options address the key policy objectives, in response to the demand of many of the public sector bodies and re-users, who the policy objectives) particular: cited the need for more guidance when addressing API and data formats issues. o To increase (fair) competition in  However, there is evidence that the current Guidelines attached to the the Digital Single Market Directive PSI 2013 have been ineffective so far on technical issues, mainly o To contribute to research and because they remain unknown to most of the stakeholders. innovation reaching its full  One lesson is that technical guidelines taken alone, without proper potential communication, funding and tools, are inefficient. o To contribute to the creation of  Another lesson from first analysis is that successful technical guidelines for APIs jobs and better public services or data format, should be quite detailed and prescriptive, offering a set of o To reduce costs linked to practical instructions, often authored by group of practitioners, rather than soft obtaining data and recommendations. administrative burden o To reduce legal, e.g. uncertainty

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Criterion Examples of elements to consider Main advantages / disadvantages concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  The cost of developing technical guidelines would be limited and would be balance) (public and private) stakeholders borne by the European Commission.  Main benefits for various  On the other hand, the benefits would be spread across all stakeholders. stakeholders  Indicative relation between costs and benefits Proportionality (i.e. extent  Assessment of whether the option  This option is proportionate. to which the options are in goes further than what is needed, line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option would be in line with the current regulatory and legal framework, coherence (i.e. extent to international law as are the existing Implementation Guidelines attached to the Directive. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g.

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Criterion Examples of elements to consider Main advantages / disadvantages o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option is practically and technologically feasible as the knowledge to feasibility (i.e. practicalities implementation of the option, develop such guidance already exist and could be easily mobilised. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option is not politically sensitive. stakeholder support) politically sensitive  Known positions of specific groups of stakeholders Conclusion on feasibility of  Summarise the main findings, in  This option would be feasible and easy to implement but, as seen for the the option particular noting whether the current Guidelines, its effectiveness may remain low if not properly design and option is relevant to be retained communicated. for further analysis and whether it  It is recommended to retain this option for further exploration but in should be amended combination with other measures such as communication and awareness raising. Standardisation efforts

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  Standardisation efforts is the process by which one organization, or a group of which the options address the key policy objectives, in organizations, work to define and promote the adoption of a standard. The

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Criterion Examples of elements to consider Main advantages / disadvantages the policy objectives) particular: main advantage to undertake such standardisation effort for data format and o To increase (fair) competition in distribution is that it would enable to respond more closely to policy objectives the Digital Single Market with for instance a focus on particular datasets, sectors or set of stakeholders. o To contribute to research and  The main disadvantage is that standardisation effort can be long and innovation reaching its full cumbersome without any certainty on the results. Standardisation effort is potential often an innovation process, many fail. o To contribute to the creation of jobs and better public services o To reduce costs linked to obtaining data and administrative burden o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  Standardisation effort should not impose unnecessary costs to public sector balance) (public and private) stakeholders bodies, businesses and citizen due to the design process or the resulting  Main benefits for various standard defined. stakeholders  Standardisation effort is often the result of a positive externality from an  Indicative relation between costs innovation process (GTFS, etc.) and benefits Proportionality (i.e. extent  Assessment of whether the option  The option is proportionate with what is needed to achieve the policy to which the options are in goes further than what is needed, objectives. line with what is needed to based on:

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Criterion Examples of elements to consider Main advantages / disadvantages achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is in line with and does not contradict other laws cited beside with coherence (i.e. extent to international law an exception for the INSPIRE Directive that also touch upon standardization which the options are in line  EU Treaty objectives and process by setting out the foundation for geospatial infrastructures. with legal requirements and requirements (e.g. on the  Additionally, further analysis might be needed for sector-specific legislations, coherent with other EU competences of the EU to adopt such as the ITS Directive in transport that also address standardization policy objectives) specific types of instruments) processes.  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  Standardisation efforts do not require specific technical needs beyond what feasibility (i.e. practicalities implementation of the option, already exists. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option does not seem to be politically sensitive. stakeholder support) politically sensitive  Known positions of specific groups of stakeholders

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Criterion Examples of elements to consider Main advantages / disadvantages Conclusion on feasibility of  Summarise the main findings, in  Standardisation effort is an uncertain process that should not be led, or the option particular noting whether the undertake exclusively, by the Commission or public sector bodies. option is relevant to be retained  An alternative might be to agree on and define a set of principles on how for further analysis and whether it standardisation efforts should be conducted, in order for the process to be should be amended inclusive, fair and therefore with better chance of success.517

7.4.3 Regulatory policy options Amend Article 5 to impose a set of obligations on format and distribution These new obligations would impose: a) to make dynamic data available for re-use immediately after collection via an API b) to make all documents existing in digital form available online under conditions c) to make such obligation unconditional if the document in question has already been made available for re-use d) to allow refusal of re-use requests on the basis of online availability

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  Making dynamic data available through API would reduce costs linked to which the options address the key policy objectives, in obtaining data, and would increase fair competition in the Digital Single the policy objectives) particular: Market, as we are starting to witness in the transport sector; o To increase (fair) competition in  The re-use of dynamic data would also contribute to research and the Digital Single Market innovation in potentially all economic sectors but for sure in transport, o To contribute to research and energy, and environment; innovation reaching its full  It would also enable better public services, in particular in the sectors cited

517 See https://www.gov.uk/government/publications/open-standards-principles/open-standards-principles

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Criterion Examples of elements to consider Main advantages / disadvantages potential above; o To contribute to the creation of jobs and better public services o To reduce costs linked to obtaining data and administrative burden o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  Investment costs related to the technical implementation of API for public balance) (public and private) stakeholders sector bodies may be high, in particular for small public sector bodies, or in the  Main benefits for various case of proprietary software (see Practical and technological feasibility below). stakeholders  On API, there is evidence that benefits for re-users (private and public) largely  Indicative relation between costs surpass investment costs for public sector bodies, but only where there is a and benefits high demand, such as for some sector-specific data standards (ex: GTFS) or for specific datasets (ex: Company registry). Proportionality (i.e. extent  Assessment of whether the option  The demand for public API, as well as the definition of what is a dynamic data, to which the options are in goes further than what is needed, may vary between datasets and sectors. Therefore, option a) seems out of line with what is needed to based on: scope. achieve the policy o Scope of the option  The demand for open and machine-readable format is, however, consistent objectives) o Type of instrument proposed regardless of the datasets or sector considered. Therefore, option b), c) and d) (e.g. hard law vs. soft measures) seems proportionate. Legal feasibility and  Obligations arising from  No evidence has been found that options are not in line with other legal 355

Criterion Examples of elements to consider Main advantages / disadvantages coherence (i.e. extent to international law requirements nor coherent with other EU policy objectives. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  Releasing dynamic data through public API requires to have a specific feasibility (i.e. practicalities implementation of the option, component on top of the data management software. However, many tools needed for the including e.g. the need to set up used by public sector bodies for data collection and management still do not implementation, monitoring new IT tools and to what degree have such component. In most of the cases, implementing a public API would and enforcement) this is feasible be technically feasible. However, in the case of a proprietary software, this would require the intervention and approval of the software publisher itself. This would be easier in the case of open source or ad-hoc software. Political feasibility (i.e.  Extent to which the option is  There is no evidence that the options are politically sensitive. stakeholder support) politically sensitive  There is at least evidence of interest for public API in the following sectors:  Known positions of specific groups transport, energy, environment and finance. of stakeholders Conclusion on feasibility of  Summarise the main findings, in  Making dynamic data available for re-use immediately after collection via an the option particular noting whether the API is not proportionate and may result in lower inefficiency gain as it would

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Criterion Examples of elements to consider Main advantages / disadvantages option is relevant to be retained add excessive burden on administration collecting dynamic data or large for further analysis and whether it datasets but that are not technically ready to do so. Therefore, this option should be amended should not be retained.  The use of API and access to dynamic data should be proportionate to the demand, also taking into consideration the related marginal cost. As above, but formulated as a soft obligation (e.g. as add-on to existing provision) or only applicable to large public sector bodies

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  Same as regulatory option above. which the options address the key policy objectives, in the policy objectives) particular: o To increase (fair) competition in the Digital Single Market o To contribute to research and innovation reaching its full potential o To contribute to the creation of jobs and better public services o To reduce costs linked to obtaining data and administrative burden o To reduce legal, e.g. uncertainty concerning specific data and associated rights o To ensure EU-wide access to PSI-based services for citizens/consumers

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Criterion Examples of elements to consider Main advantages / disadvantages o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  Efficiency gains would be higher than in regulatory option above, in particular if balance) (public and private) stakeholders the targeted bodies are the ones producing high value data (dynamic or not);  Main benefits for various  The use of API and delivery of dynamic data has both an investment and an stakeholders operational the second depending on the number of re-user. The operational  Indicative relation between costs cost should be taking into account as a marginal cost. and benefits Proportionality (i.e. extent  Assessment of whether the option  A soft obligation, or an obligation to large sector bodies only, may be more in to which the options are in goes further than what is needed, line with the policy objectives, as it might enable to better focus on the right line with what is needed to based on: stakeholders, the ones producing high value data; achieve the policy o Scope of the option  However, the question of what is a large sector body, and the scope of high objectives) o Type of instrument proposed value datasets coming from those stakeholders remain. It should also be noted (e.g. hard law vs. soft measures) that with such a definition of stakeholders, the scope of datasets may vary depending on Member States;  The use of API and access to dynamic data should be proportionate to the demand, also taking into consideration the related marginal cost. Legal feasibility and  Obligations arising from  No evidence has been found that options are not in line with other legal coherence (i.e. extent to international law requirements nor coherent with other EU policy objectives. which the options are in line  EU Treaty objectives and with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data)

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Criterion Examples of elements to consider Main advantages / disadvantages o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  Same as regulatory option above. feasibility (i.e. practicalities implementation of the option, needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  Same as regulatory option above. stakeholder support) politically sensitive  Known positions of specific groups of stakeholders Conclusion on feasibility of  Summarise the main findings, in  Making dynamic data available for re-use immediately after collection via an the option particular noting whether the API, when administrations are technically ready, and when there is a demand option is relevant to be retained (high-value datasets), seems to be the most proportionate and efficient option. for further analysis and whether it should be amended  The scope of data to be made available through API should therefore be a continuous discussion at EU and MS levels, in line with the identification of high value datasets;  In addition, API should comply with open standards, including having their code source open, in order to foster their implementation and discovery;  Lastly, marginal cost, rather than free of charge, should be default option for API and delivery of large datasets, as in this case, costs for delivery will remain dependent on the demand.

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7.4.4 Conclusions on the APIs and dynamic data policy options

There is a consensus from re-users (private, academia and public) that access to dynamic data, large datasets, and other valuable data via public API could bring significant economic and social impacts. However, our analysis shows that this demand is closely related to underlying, less visible issues, which are interoperability and data infrastructures. When requesting for a public API, re-users primarily asks for a continuous level of service, a liability of the data provider. The main benefit of addressing data infrastructures and interoperability efforts is that it would enable to foster both quality and distribution of data while enabling to guarantee the same level of service, trough time. Distributing datasets via public APIs would become a much easier task then. However, it seems unrealistic to ask for all public sector information to be made available online through public API, or for all dynamic data to be made available in real-time. First, the demand for public API does not concern all information but is mainly expressed for specific, high-value datasets, often produced by para-public bodies such as utilities. Second, the ability of data providers to implement public APIs or provide dynamic and large datasets varies a lot, depending on their capacities, but also on the demand side. As we have seen, successful APIs can reach more than a billion request per year. This has a cost in terms of data infrastructures. Given all these considerations, the changes in the Directive related to the implementation of public API and access to dynamic datasets should be proportionate to the demand, also taking into account the corresponding marginal costs. In conclusion the best option would be to amend Article 5 to impose a set of obligations on format and distribution, including a) to make dynamic data available for re-use immediately after collection via an API b) to make all documents existing in digital form available online under conditions c) to make such obligation unconditional if the document in question has already been made available for re-use d) to allow refusal of re-use requests on the basis of online availability However, as discussed above, option a) should be applicable only to specific high-value datasets or bodies providing those datasets. The scope of dynamic data and datasets to be made available via public API should be the subject of continuous discussions at the EU and Member State levels, in line with the identification of high-value key datasets discussed in section 7.2. In addition, public API should comply with open standards, to support their implementation, enhancement, and discovery, in the same spirit as for public sector information itself. Lastly, even though free-of-charge becomes the default option for public sector information, the use of marginal cost should be allowed for access to data through public API, as in this case, and depending on the demand, distribution cost might be significant.

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Those provisions may also be combined with a set of non-regulatory measures for data infrastructures and interoperability issues. Those measures could include targeted funding mechanisms, communication and awareness raising, technical documentation, guidance for IT procurement as well as the contribution of the EU Commission to standardization efforts.

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7.5 Exclusive agreements 7.5.1 Baseline Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This policy option presents a number of advantages: which the options address the key policy objectives, in o Legal certainty is ensured as there is a continuation of the current rules and the policy objectives) particular: therefore stakeholders benefit from a stable regulatory environment (also o To increase (fair) competition in knowing that the 2013 legislative changes have not yet been entirely the Digital Single Market absorbed and that some Member States still do not have guidelines for o To contribute to research and charging) innovation reaching its full o There is no additional administrative burden for public sector bodies as they potential are/should already be compliant with the 2013 rules. o To contribute to the creation of o Rules for ensuring fair competition exist (Article 11 of the Directive, jobs and better public services limitation in time and in scope of exclusive agreements) o To reduce costs linked to  A number of disadvantages also exist: obtaining data and o The situation of de-facto exclusive agreements is not currently addressed by administrative burden the Directive and would not be addressed in the framework of this option o To reduce legal, e.g. uncertainty o The number of de facto exclusive agreements would continue to increase concerning specific data and o Re-users would not have any tool to challenge de facto exclusive associated rights agreements o To ensure EU-wide access to  Therefore, to achieve a fully functioning digital single market and unlock the PSI-based services for data potential, this policy option would not be fully effective. citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  This policy option would have no benefits nor costs for the public sector (it would be neutral as the costs associated to the implementation of the PSI 362

Criterion Examples of elements to consider Main advantages / disadvantages balance) (public and private) stakeholders Directive should not be accounted for here).  Main benefits for various  This policy option would entail opportunity costs for the EU society: since some stakeholders datasets would be “de facto” locked by exclusive agreements, their full  Indicative relation between costs economic value for the European economy could not be exploited by all and benefits interested re-users.  Therefore, if one compares the zero costs and benefits for the PSBs with the opportunity costs for re-users and society, the balance is negative as costs are greater than benefits for the society overall. Proportionality (i.e. extent  Assessment of whether the option  This option would be proportionate as it would represent the continuation of to which the options are in goes further than what is needed, the status quo and would not entail additional efforts for implementation to line with what is needed to based on: any stakeholders. achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is be legally feasible. coherence (i.e. extent to international law  No issue in terms of coherence with primary or secondary legislation (or with which the options are in line  EU Treaty objectives and international obligations) could be identified at this stage. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive

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Criterion Examples of elements to consider Main advantages / disadvantages o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option is practically and technologically feasible. feasibility (i.e. practicalities implementation of the option,  No practical or technological barriers could be identified at this stage. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option is political feasible. stakeholder support) politically sensitive  All stakeholders’ communities generally support the idea of leaving the  Known positions of specific groups charging rules untouched for this review round of the Directive also considering of stakeholders that these have not been fully implemented yet by Member States (e.g. charging guidelines are still missing in a number of EU countries) Conclusion on feasibility of  Summarise the main findings, in  This option is politically, technologically, legally and practically feasible. the option particular noting whether the  However, its effectiveness in terms of desired outcome and efficiency are option is relevant to be retained questionable. for further analysis and whether it should be amended

7.5.2 Non regulatory policy options Communication and awareness raising

Criterion Examples of elements to consider Main advantages / disadvantages

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Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This option would have a limited number of advantages: which the options address the key policy objectives, in o It would contribute to increasing the awareness of the risks linked to the policy objectives) particular: exclusivity and de facto exclusivity amongst PSBs o To increase (fair) competition in o It would contribute to disseminate best practices and foster a discussion the Digital Single Market over this subject o To contribute to research and o It would help re-users to recognise when they are facing a de facto exclusive innovation reaching its full agreement hampering them potential o It would help re-users to be better equipped to challenge (de facto) o To contribute to the creation of exclusive agreements through informing them on existing rules jobs and better public services  This option would have a number of disadvantages: o To reduce costs linked to o It would not address the issues related to the competition in the Digital obtaining data and Single Market administrative burden o It would not directly reduce the barriers for re-users as they would have o To reduce legal, e.g. uncertainty limited means to challenge (de facto) exclusive agreements concerning specific data and associated rights  Therefore, this option would not be entirely effective in directly addressing the problems related to (de facto) exclusive agreements although it could o To ensure EU-wide access to contribute to increase stakeholders’ awareness about this issue and PSI-based services for disseminate best practices on how to address the risks linked to such citizens/consumers agreements. o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail some costs for the public sector (at the EU level) in balance) (public and private) stakeholders order to establish and launch communication and awareness raising campaign  Main benefits for various across the EU. stakeholders  This option would not entail costs for re-users.  Indicative relation between costs  The main benefits from this option would be: and benefits o Increased awareness and understanding of exclusive agreements from PSBs leading to more transparent and fairer practices

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Criterion Examples of elements to consider Main advantages / disadvantages o Increased awareness and understanding of exclusive agreements amongst re-users who could be then better positioned to challenge them.  Based on the list of costs and benefits above, it can be argued that this option is efficient as it allows a reasonable return in investment. The costs would be borne at the EU level while the benefits would be reaped at the level of PSBs and re-users. Proportionality (i.e. extent  Assessment of whether the option  This option is proportionated as it does not require implementation efforts to to which the options are in goes further than what is needed, any of the stakeholders except the EU level. line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is legally feasible. coherence (i.e. extent to international law  No issue in terms of coherence with primary or secondary legislation (or with which the options are in line  EU Treaty objectives and international obligations) could be identified at this stage. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive

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Criterion Examples of elements to consider Main advantages / disadvantages Practical and technological  Specific needs for the  This option is practically and technologically feasible. feasibility (i.e. practicalities implementation of the option,  No practical or technological barriers could be identified at this stage. needed for the including e.g. the need to set up implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option is politically feasible. stakeholder support) politically sensitive  Stakeholders (both amongst the Member States and the re-users) are  Known positions of specific groups supportive of clarification efforts and more communication in terms of best of stakeholders practices and guidelines to follow concerning charging practices under the PSI Directive.

Conclusion on feasibility of  Summarise the main findings, in  This option is technically, legally, politically and economically feasible. the option particular noting whether the  With minimum efforts and investments it would be possible to improve the option is relevant to be retained current situation through increasing awareness between stakeholders the risks for further analysis and whether it and best practices associated with exclusive agreements. should be amended  However, this option could not fix all economic barriers and could not entirely ensure fairness and competition within the market as exclusive agreements will remain a market entry barrier for a number of players. This will have an effect in terms of under exploitation of the value of data and less creation of jobs and services.

Development of guidelines and recommendations

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Criterion Examples of elements to consider Main advantages / disadvantages particular: agreements through providing concrete advice for limiting their negative o To increase (fair) competition in effects the Digital Single Market o It would help re-users to be better equipped to challenge (de facto) o To contribute to research and exclusive agreements through informing them on existing rules innovation reaching its full o It would help harmonising how PSBs in Europe conceive and formalise potential exclusive agreements o To contribute to the creation of  This option would have a number of disadvantages: jobs and better public services o It would not entirely address the topic of (de facto) exclusive agreements as o To reduce costs linked to guidelines would focus more on contractual exclusive agreements obtaining data and o It would not address the issues related to the competition in the Digital administrative burden Single Market o To reduce legal, e.g. uncertainty o It would not directly reduce the barriers for re-users concerning specific data and  Therefore, this option would not be entirely effective in directly addressing the associated rights problems related to (de facto) exclusive agreements although it could o To ensure EU-wide access to contribute to guide stakeholders in the definition of better exclusive PSI-based services for agreements and in the identification of underlying issues. citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail very limited costs for the public sector (at the EU level) balance) (public and private) stakeholders in order to develop the guidelines and recommendations.  Main benefits for various  This option would not entail costs for re-users. stakeholders  The main benefits from this option would be:  Indicative relation between costs o Increased adoption of best practices and suggested approaches in terms of and benefits establishment of exclusive agreements o Increased awareness and understanding of exclusive agreements from re- users (thanks to guidelines) leading to more of these agreements being challenged by other re-users interested in the data

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Criterion Examples of elements to consider Main advantages / disadvantages  Based on the list of costs and benefits above, it can be argued that this option is efficient as it allows to reap some benefits with a very limited initial investment. The costs would be borne at the EU level while the benefits would be reaped at the level of PSBs and re-users. Proportionality (i.e. extent  Assessment of whether the option  This option is proportionated as it does not require implementation efforts to to which the options are in goes further than what is needed, any of the stakeholders except the EU level. line with what is needed to based on: achieve the policy o Scope of the option objectives) o Type of instrument proposed (e.g. hard law vs. soft measures) Legal feasibility and  Obligations arising from  This option is legally feasible. coherence (i.e. extent to international law  No issue in terms of coherence with primary or secondary legislation (or with which the options are in line  EU Treaty objectives and international obligations) could be identified at this stage. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  This option is practically and technologically feasible. feasibility (i.e. practicalities implementation of the option,

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Criterion Examples of elements to consider Main advantages / disadvantages needed for the including e.g. the need to set up  No practical or technological barriers could be identified at this stage. implementation, monitoring new IT tools and to what degree and enforcement) this is feasible Political feasibility (i.e.  Extent to which the option is  This option is politically feasible. stakeholder support) politically sensitive  Stakeholders (both amongst the Member States and the re-users) are in need  Known positions of specific groups of guidance on charging and they would benefit from recommendations and of stakeholders examples of best practices.

Conclusion on feasibility of  Summarise the main findings, in  This option is technically, legally, politically and economically feasible. the option particular noting whether the  With minimum efforts and investments it would be possible to improve the option is relevant to be retained current situation through better guidance for stakeholders and thanks to a set for further analysis and whether it of recommendations on how to develop the most adequate exclusive should be amended agreements possible  However, this option could not fix all economic barriers and could not entirely ensure fairness and competition within the DSM due to its non-binding nature. This will have an effect in terms of under exploitation of the value of data and less creation of jobs and services.

7.5.3 Regulatory policy options Modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity.

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Criterion Examples of elements to consider Main advantages / disadvantages the policy objectives) particular: o It would ensure fair competition for the re-use of PSI in Europe by banning o To increase (fair) competition in any situation in which exclusivity would apply; the Digital Single Market o It would establish a clear principle and line of action for PSBs, leaving no o To contribute to research and “grey zone” of legislation innovation reaching its full o It would ensure legal certainty for all re-users treating them equally potential o It would ensure the development of new services and product and o To contribute to the creation of contribute to the growth of the data economy in Europe jobs and better public services  Therefore would also be a limited number of disadvantages: o To reduce costs linked to o It would disincentivise the negotiation of public-private collaborations and obtaining data and projects administrative burden o It would hamper the development of public-private innovate services and o To reduce legal, e.g. uncertainty initiatives concerning specific data and  Therefore this option would be effecting in addressing the identified problems associated rights but it could raise a number of negative side-effects in terms of public-private o To ensure EU-wide access to collaboration. PSI-based services for citizens/consumers o To remove economic, technical and legal barriers Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail certain costs for public sector bodies: balance) (public and private) stakeholders o PSBs will lose a certain amount of private investments due to the risks of  Main benefits for various more limited public-private collaboration. stakeholders o PSBs would have to substitute with public funding the amount of investment  Indicative relation between costs not provided by private players anymore and benefits  This option would entail a number of benefits for stakeholders: o Increased re-use of datasets o Increased number of services and jobs generated by re-users

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Criterion Examples of elements to consider Main advantages / disadvantages o Increased economic value generated by re-users o Increased efficiency of the public sector bodies  The relation between costs and benefits is positive for the overall society although for public sector bodies concerned the question of how replace private investment with public money is not trivial. Indeed, efficiency wise, it is clear that benefits are greater than costs although there might also be a short- term/long-term aspect to consider. Proportionality (i.e. extent  Assessment of whether the option  The proportionality of this measure is contested: to which the options are in goes further than what is needed, o Some stakeholders suggest that intervention is needed from the European line with what is needed to based on: Union to achieve a level-playing field for the re-use of data and avoid achieve the policy o Scope of the option distortion in competition. They also sustain that, given the current trend objectives) o Type of instrument proposed concerning rise in de facto exclusive agreements in certain domains, it is (e.g. hard law vs. soft measures) important to establish EU-wide rules to frame the emerging issues already at this stage. o Others cast some doubts on the proportionality of such a measure: it is true that exclusive agreements exist and are on the rise in certain domain. However, they are very limited in number at this stage (in certain Member States there are none). Therefore, a policy option of such kind could be disproportionate. Legal feasibility and  Obligations arising from  This sub-option (although legally difficult to implement) is legally feasible and coherence (i.e. extent to international law coherent with the EU primary and secondary legislation, as well as with which the options are in line  EU Treaty objectives and international obligations: no barriers to feasibility and coherence could be with legal requirements and requirements (e.g. on the identified in this respect. coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs.

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Criterion Examples of elements to consider Main advantages / disadvantages excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  There are no technical barriers related to the implementation of this sub- feasibility (i.e. practicalities implementation of the option, option. needed for the including e.g. the need to set up  Practical barriers might concern the risk of lowering the level of public-private implementation, monitoring new IT tools and to what degree collaboration overall. This is also linked to the debate on short-term/long-term and enforcement) this is feasible advantages derived from exclusive agreements. Political feasibility (i.e.  Extent to which the option is  This sub-option is politically sensitive. stakeholder support) politically sensitive  Many Member States have a strong tradition of public-private collaboration  Known positions of specific groups projects which might be hampered by such a measure. of stakeholders  A number of private stakeholders (those collaborating more frequently with the public sector, also in the framework of exclusive agreements) would also be strongly affected by such a measure.  Therefore, also knowing that rules on exclusive agreements already exist although they might not be perfect, this sub-option seems difficult to adopt at this stage at least in absence of clear political decision. If Member States agree to free up other public resource to this purpose, feasibility could nonetheless be ensured. Conclusion on feasibility of  Summarise the main findings, in  This option would be very effective in ensuring a level-playing field for re-users the option particular noting whether the and addressing the current trends in terms of exclusive agreements. option is relevant to be retained  However, some issues in terms of proportionality and political feasibility must for further analysis and whether it be raised. Also due to the existence of article 11 in the Directive, some should be amended stakeholders are not convinced that this option would be needed and

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Criterion Examples of elements to consider Main advantages / disadvantages proportionate given the magnitude of the problem.

Modifying article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity

Criterion Examples of elements to consider Main advantages / disadvantages Effectiveness (i.e. extent to  Potential of the options to achieve  This sub-option would be have a number of advantages in terms of which the options address the key policy objectives, in effectiveness: the policy objectives) particular: o It would help ensuring fairer competition for the re-use of PSI in Europe by o To increase (fair) competition in reducing the number of cases in which exclusivity would apply. the Digital Single Market o It would establish clear rules for both PSBs and other stakeholders in order o To contribute to research and to enable them to challenge exclusive agreements innovation reaching its full o It would ensure legal certainty for all re-users treating them equally potential o It would ensure the development of new services and product and o To contribute to the creation of contribute to the growth of the data economy in Europe jobs and better public services  Therefore would also be a limited number of disadvantages: o To reduce costs linked to o It would not solve all issues related to de facto exclusivity obtaining data and administrative burden o It would add administrative burden on PSBs (in charge of safeguard mechanisms) and other stakeholders (willing to activate them). o To reduce legal, e.g. uncertainty concerning specific data and o It would leave a marge of interpretation to PSBs and courts depending on associated rights the definition of high risk. o To ensure EU-wide access to o If different mechanisms for safeguard are put in place by different PSBs, it PSI-based services for would lead to inhomogeneous practices across Member States. citizens/consumers  Therefore, this solution would be effective in reducing the number of o To remove economic, technical unjustified exclusive agreements but would also leave some marge for and legal barriers discrepancies in implementation.

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Criterion Examples of elements to consider Main advantages / disadvantages Efficiency (i.e. cost-benefit  Main cost factors for various  This option would entail certain costs for public sector bodies: balance) (public and private) stakeholders o PSBs would have to establish new safeguard procedures and allocate  Main benefits for various sufficient resources to implement them. stakeholders o Re-users would have to allocate resources to the safeguard procedure when  Indicative relation between costs activing it, which, based on the example of redress procedure for access and benefits request, might entail high level of administrative burden.  This option would entail a number of benefits for stakeholders: o Increased re-use of datasets o Increased number of services and jobs generated by re-users o Increased economic value generated by re-users o Increased efficiency of the public sector bodies  The relation between costs and benefits is overall positive although there are some costs involved both for PSBs and for re-users of data. Depending on the extent to which the safeguard mechanisms are effective and well-thought, there is a lower/higher risk for all stakeholders to have additional administrative burden to cope with without necessarily seeing a tremendous improvement of the situation. Proportionality (i.e. extent  Assessment of whether the option  This sub-option is overall proportionate: to which the options are in goes further than what is needed, o Intervention is needed from the European Union to achieve a level-playing line with what is needed to based on: field for the re-use of data and avoid distortion in competition. achieve the policy o Scope of the option o Given the current trend toward increase in the number of de facto exclusive objectives) o Type of instrument proposed agreements, legislative intervention is considered as necessary to address (e.g. hard law vs. soft measures) the situation already at this stage. o Contrarily to previous sub-option it does not generate debate amongst stakeholders in terms of proportionality. Legal feasibility and  Obligations arising from  This sub-option is legally feasible and coherent with the EU primary and coherence (i.e. extent to international law secondary legislation, as well as with international obligations: no barriers to

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Criterion Examples of elements to consider Main advantages / disadvantages which the options are in line  EU Treaty objectives and feasibility and coherence could be identified in this respect. with legal requirements and requirements (e.g. on the coherent with other EU competences of the EU to adopt policy objectives) specific types of instruments)  Fundamental rights  EU secondary legislation, e.g. o GDPR (PSI including personal vs. excluding personal data) o INSPIRE Directive o Database Directive o Copyright Directive o Public Procurement Directives o Trade Secrets Directive Practical and technological  Specific needs for the  There are no technical barriers related to the implementation of this sub- feasibility (i.e. practicalities implementation of the option, option. needed for the including e.g. the need to set up  Practical barriers might concern the need to clearly define what high-risks implementation, monitoring new IT tools and to what degree means and to establish sufficient clarity on how the safeguard mechanism and enforcement) this is feasible should look like as for PSBs to be able to develop homogeneous practices. Political feasibility (i.e.  Extent to which the option is  This sub-option is not sensitive. stakeholder support) politically sensitive  Following the example of the redress procedure, Member States do not have  Known positions of specific groups particular objections to establish an exclusivity safeguard. of stakeholders  Re-users strongly would strongly support such a measure which would allow them to challenge exclusive agreements better. Conclusion on feasibility of  Summarise the main findings, in  This option would be overall effective in ensuring a level-playing field for re- the option particular noting whether the users and addressing the current trends in terms of exclusive agreements option is relevant to be retained although it would not address all problems entirely. for further analysis and whether it

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Criterion Examples of elements to consider Main advantages / disadvantages should be amended  This option is proportionate, technically, practically and legally feasible.

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7.5.4 Conclusions on the exclusive agreements policy options

The nature and dynamics of exclusive agreements changed over time. In the past decade, these mechanisms were used primarily to help public sector bodies digitising data and information which were originally paper based. Nowadays, exclusive agreements emerge more and more within the context of public private partnerships and in situations involving provisions of public services by private operators. As the nature of these agreements evolved, policy makers need to look into the available instruments and consider possible changes to the legislative framework. The objective for them should be those of a) limiting the number of exclusive agreements as far as possible and b) ensuring that exclusive agreements intervene only when there are clear justifications for these practices. From this perspective, the analysis of the baseline, non-regulatory and regulatory policy options allows to determine which of these instruments best correspond to the fulfillment of the above-mentioned objectives. As described in the previous section, the baseline policy option (no intervention) does not seem to be adequate for addressing the new concerns related to exclusive agreements. Indeed, if no action is taken, new exclusive agreements and related practices will continue to emerge. Non-regulatory policy options on the other hand would present some benefits: first of all, as mentioned in the problem assessment, the awareness on exclusive agreements risks is limited and therefore further communication efforts and the development of guidelines and recommendations could be of help. Secondly, these options would most likely allow to reduce the number of these agreements by increasing the attention and skills of public sector officials in the domain. However, non-regulatory policy options would not be able to impose further checks on these contracts and change the approach of PSBs willing to conclude such kind of agreements. This is the reason why, to effectively intervene in this area and to achieve the overall objectives, regulatory options must be considered. Once more, policy makers have two possibilities: lighter or heavier regulatory intervention. In the first case, article 11 could be modified to include a safeguard measure for agreements with high risks of de facto exclusivity. This will allow to exert a control while leaving PSBs a marge of flexibility when negotiating public-private projects and initiatives. In the second case, the article could be modified in order to forbid “agreements that might lead to de facto exclusivity”. This approach would eradicate the problem at its roots although it might raise some concerns in terms of applicability and proportionality. Overall, regulatory options seem most appropriate to address the emerging barriers to access to data related to exclusive agreements. For this reason these options will be considered for further assessment.

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8 Assessment of policy packages

This chapter presents the analysis of the policy packages established by shortlisting and bringing together the policy options per problem area described in the previous sections. 8.1 Overview of the policy packages The previous sections present a high level assessment of all sub-options identified for each of the topics covered by the impact assessment. The assessment of the impact on the overall PSI markets and on the society however can only be performed at the aggregated level, that is to say creating policy option packages that gather one or more sub-options for each of the topic considered by the study. These macro-level policy packages will then be the object of the further analysis. Based on the assessment presented above and without further considering the sub-options already discarded, 3 high level policy packages could be identified. Policy package 0: baseline scenario/no policy change. The baseline scenario regroups the no policy change option for all the topics for which problems could be identified: research data, data held by para-public bodies, charging, APIs and dynamic data and exclusive agreements. The analysis of this policy package will therefore allow to define what would happen if no measures are taken in all these areas. Although for all topics the baseline scenario (no policy action) has been considered as not entirely adequate to address the emerging problems, it is important to keep this policy package for methodological reason and in order to quantify the benefits of the other two packages with respect to this no action scenario. Policy package 1: packaged measures consisting in both legislative and non-legislative measures (low intensity of legislative intervention). This package mixes both legislative and non-legislative measures and it involves:

 Amending article 5 in order to entice public sector bodies to make dynamic data available for re-use immediately after collection via an API.  Amending article 6 to limit recourse to exceptions to marginal cost charging: deleting the exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c).  Defining a limited set of high-value datasets to be released as open data (charging limited to marginal cost, open license) across the EU on a basis of a Delegated Act.  Extend the scope of the PSI Directive to research and educational establishments to cover administrative data and research results, focusing on the re-usability of already accessible data. 379

 Extend the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply.  Modify article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity. In addition to these regulatory changes, this option includes an update and reinforcement of the Recommendation on access to and preservation of scientific information in the areas described under the low intensity package. Policy package 2: packaged measures consisting in both legislative and non-legislative measures (high intensity of legislative intervention). This package mixes both legislative and non-legislative measures and it involves:

 Amending article 5 in order to create an obligation to make dynamic data available for re-use immediately after collection via an API.  Introducing free of charge re-use as the only rule for all documents covered by the Directive.  Extending the scope of the PSI Directive to research and educational establishments so as to cover administrative data and research results and to mandate educational and research establishments and research funding bodies to implement open access policies.  Extending the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU or on the basis of a concession bodies and entities under the default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.).  Modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity. In addition to these regulatory changes, this option includes an update and reinforcement of the Recommendation on access to and preservation of scientific information so as to take into account of the policy and technological changes occurred since its adoption, and to provide further guidance on opening up research data and on developing incentive schemes and reward systems for researchers to share data.

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8.2 Assessment of the policy packages 8.2.1 Baseline Scenario

This section provides a qualitative and quantitative analysis of the baseline policy package. Outcomes of the quantitative modelling Similar to the work done in relation to the evaluation part of the assignment, we have used the quantitative models to estimate the following types of data per Member State518 from 2018 to 2030:

 Number of stakeholders “affected”519;  Direct and indirect economic value of PSI;  Number of persons (in-)directly employed in the area of PSI;  Cost savings from PSI for public authorities;  Additional government revenue from PSI; and  Costs of PSI for public sector bodies (i.e. contracting authorities, cultural institutions, para-public bodies, research institutions). For each of the above metrics, the following sections provide estimates based on the application of the model(s) that have been derived. Number of stakeholders affected The following graph displays the development of the estimated EU28 aggregate number of stakeholders affected.

518 Member State specific information is currently only available in the underlying Excel file but can be provided to the Commission upon request. 519 This means the total number of stakeholders that are currently concerned by the Directive or could be concerned in the future based on the content of the policy options.

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Figure 50 – Number of different types of stakeholders affected by the PSI Directive (EU28, 2018-2030)

2,4 350

300 2,0 250

1,6 200

Million Million companies 150 1,2

100 0,8 50

0,4 - Thousands of other stakeholders

Companies using data Contracting authorities Cultural institutions (museums & public libraries)

Source: Estimate by Deloitte based on Eurostat, IDC, OECD, PwC, and various business associations. Dotted graph relates to the left, primary axis. The graph above displays the expected development of the estimated EU28 aggregate number of stakeholders affected by the PSI Directive in the period of 2018-2030. The graph shows that around 290,000 contracting authorities under the Public Procurement Directive are affected by the PSI Directive today. Around 75,000 relate to cultural institutions e.g. museums and libraries. Around 779,000 companies are expected to be affected by the PSI Directive. By 2030 this number is expected to increase by around 1.4 Million to around 2.2 Million. Therefore, the number of companies using data is expected to steadily increase by 182% until 2030. Overall the large majority of stakeholders affected by the PSI directive are private companies using data. The development of the number potential end-users of PSI-based services is visualised below. At this stage, we assume that every legal person or citizen can potentially be an end-user of PSI-based services, e.g. during the development of a new marketing campaign or when watching the weather forecast. Thus, the following chart contains the development of the number of businesses and the number of citizens in the EU.

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Figure 51 – Number of businesses and citizens as potential end-users of PSI-based services (EU28, 2018-2030)

540 35

30 530 25

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10 510 5

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Number of citizens Number of businesses

Source: Estimate by Deloitte based on Eurostat. Dotted graph relates to the left, primary axis. The graph displays the development of the EU28 number of businesses and citizens who are potential end-users of PSI-related services. As can be seen above, in a very broad sense, all citizens can potentially benefit from PSI as end-users. The number of citizens is expected to steadily increase until 2030. Similarly, the number of businesses is expected to increase as well until 2030, providing the PSI market with an increasing amount of potential customers. The graph shows that in 2018 around 24 Million businesses are expected to be potential end-users of PSI-based-services. By 2030 this number is expected to increase to around 29 Million businesses Therefore, the number of businesses as potential end-users of PSI-based- services is expected to increase by around 5 Million until 2030. In 2018 around 513 Million citizens are expected to be potential end-users of PSI-based-services. By 2030 the number of citizens is expected to increase to almost 534 Million. Therefore, the number of citizens as potential end-users of PSI-based-services is expected to increase by around 21 Million. Overall both the number of citizens and the number of businesses are expected to increase in the period of 2018-2030. Economic value of PSI This section provides, as introduction, a brief meta-analysis of the landscape of available estimates of the economic value of Open Data / PSI based in particular on the work done for the most recent Analytical Report n9 on the European Data Portal520.

520 See: https://www.europeandataportal.eu/sites/default/files/analytical_report_n9_economic_benefits_of_open_da ta.pdf

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In addition, the section provides the estimate of the economic value of PSI specifically developed as part of this study.

Examples of PSI-based cross-border services A number of examples of new services created from public open data and having a cross- border dimension exist. The most famous are undoubtedly those apps combining geolocalisation with data from local authorities and local transport to provide customised journeys and commuting experiences to citizens. Amongst these apps, the Lithuanian app Trafi provides this service for both Lithuanian and Estonian cities. Similar apps are developed in the domain of whether forecasts. WeatherPro for instance builds on meteorological data for providing accurate forecasts for thousands of European locations. In the domain of cultural data, the French app Monument Tracker re-uses data from cultural institutions and combines them with many other datasets in order to provide personalised touristic experience in 55 cities worldwide including 49 in Europe. Many other touristic apps with such characteristics are currently emerging (e.g. Tur4all, WeCity, Historic Atlas etc.). Finally, many business models were created building on the re-use of company data and data from business-registers (and other registers). For instance, Transparentdata in Poland provides real-time company information from multiple comprehensive sources and covering multiple European countries. Realo sells access to relevant housing listings enriched with local data and social content in order to facilitate the understanding of the real estate marketplace in several Member States. All these examples illustrate a growing trend towards establishment of EU-wide services and products.

In the below graph, the estimated direct, indirect, and total PSI economic value are provided. By direct economic value, we refer to the value of the PSI that is generated in other markets (e.g. by developing goods and services based on PSI). The indirect economic value refers to the value of goods and services that make use of those PSI-based goods or services. According to Vickery 521 and Shakespeare 522 , the indirect economic value is between 3.5 and 3.78 times as large as the direct economic value.

521 See: http://ec.europa.eu/newsroom/document.cfm?doc_id=1093 522 See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198752/13-744- shakespeare-review-of-public-sector-information.pdf

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Figure 52 – Direct, indirect, and total economic value of PSI (EU28, 2018-2030)

800 € Billions 600 €

400 €

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- € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Direct Economic Value Indirect Economic Value Total Economic Value

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. The graph depicts the estimated development of the direct, indirect, and total economic value of PSI in the 28 EU Member States between 2018 and 2030. In 2018, today, the total economic value of PSI is expected to be around 236 billion Euro. It is expected that this value could increase 672 billion Euro in 2030.523 This is an increase of 436 billion Euro, i.e. 185% compared to 2018. The graph shows that the development of the economic value of PSI is expected to flatten towards the end of the upcoming decade. This is due to general saturation of the market in line with typical s-curve market trends: Markets evolve from infancy to maturity with different growth rates and market values associated with each stage of development. Similar to the timeframe 2010-2017, the largest share of the total economic value until 2030 can be attributed to the trade of PSI-based goods and services (i.e. the indirect economic value), rather than PSI itself. The graph below presents the estimated development of the total economic value of PSI per sector. As can be seen, public administrations are expected to benefit most from trade of PSI-based based goods and services. On the one hand, public administrations and budgets benefit from increased taxation of (new) PSI-based goods and services, as well as jobs. On the other hand, public administrations themselves benefit from the use of PSI-based goods

523 Interestingly, the ambitious McKinsey study estimated that this value will already be achieved around 2020. In line with other available studies, we have used a more conservative approach and estimate that this value could be achieved ten years after with no policy intervention apart from what is currently planned or already on-going.

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and services and are thus expected to become more efficient and are able to save public budget. The industry, as well as businesses in the area of trade and transport are also expected to realise a major share of the overall economic value of PSI.

Figure 53 – Total economic value of PSI per sector (EU28, 2018-2030)

250 €

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Agriculture Industry Construction Trades & Transport ICT Finance and Insurance Real estate Professional services Public administration Arts, entertainment, recreation

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. The graph depicts the estimated development of the total economic value of PSI in the 28 EU Member States between 2018 and 2030, broken down according different industries.524 It shows that public administrations are benefit most from PSI as the economic value. In 2018, today, the total economic value of PSI for public administrations is expected to be around 69 billion Euro. It is expected that this value could increase to roughly 196 billion Euro in 2030 with growth rates flattening out over time (+127 billion Euro, + 184% compared to 2018). The economic value of PSI in the area of arts, entertainment, and recreation is expected to have been the lowest among all industries ranging from 1.1 billion Euro in 2018 to 3.4 billion Euro in 2030 (+ 2.3 billion Euro, +209%).

524 The industries and respective shares are based on the work of Capgemini to estimate the value of PSI in specific markets today. For simplification purposes, the shares are assumed to have remained constant over time although considerable variation is likely.

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For improved visibility of their relative size, the economic value of PSI for the different industries is depicted below in a bar chart.

Figure 54 – Total economic value of PSI per sector (EU28, 2017)

Arts, entertainment, recreation 3,4 €

Public administration 196,2 €

Professional services 73,6 €

Real estate 79,8 €

Finance and Insurance 54,2 €

ICT 59,8 €

Trades & Transport 88,3 €

Construction 24,1 €

Industry 89,2 €

Agriculture 3,4 €

0 € 30 € 60 € 90 € 120 € 150 € 180 € 210 € Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. Number of persons employed Whereas the total number of persons employed in the EU28 is expected to increase slowly but steadily in line with the developments in the last years, the number of persons employed in areas of knowledge-intensive activities525 – and especially in the area of PSI – is expected to increase considerably after 2020.

525 According to Eurostat, an activity is classified as knowledge intensive if employed tertiary educated persons represent more than 33 % of the total employment in that activity. See: http://ec.europa.eu/eurostat/statistics-explained/index.php/Glossary:Knowledge_Intensive_Activity_(KIA)

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Figure 55 – Number of persons employed in the (data-driven) economy (EU28, 2018-2030)

300 600

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0 0 Million Million employed overall and KIA in

Total persons employed Total persons directly employed in knowledge-intensive activities Total persons directly employed in the area of PSI

Source: Estimate by Deloitte based on Eurostat, Capgemini, and IDC. Dotted graphs relate to the left, primary axis. The graph above displays the expected development of the EU28 aggregate number of persons employed in the (data-driven) economy in the period of 2017-2030. The above graph shows that employment in areas of knowledge-intensive activity accounts for around 36% of the EU’s current labour force (roughly 80 million of 220 million overall). The share is expected to increase until 2030 to about 52% (with a peak in 2027 at around 60%). Employment in the area of PSI is expected to grow from about 50,000 persons today to approx. 240,000 in 2030. However, the growth of employment in the area of PSI is expected to be S-curve shaped. This means that the number of persons employed in the PSI market is expected to decline (rapidly) after the market has reached its peak. This is expected to be due to improved automation of processes, as well as the increasing use of e.g. artificial intelligence, big data, blockchain, and robotics. Cost savings from PSI for public authorities At the same time governments are opening up their data, the can cut costs in other parts of government activity through the use of PSI. The gross savings are visualised below.

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Figure 56 – Public expenditures and cost savings from PSI for public sector bodies (EU28, 2018-2030)

10.000 € 300 €

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- € - €

Government Government expenditure in Saving of gov. expenditure in

Government expenditure Savings of Government expenditure

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. The figure above contrasts potential public expenditures and cost savings from PSI for public sector bodies between 2018 and 2030 for 28 EU Member States under the baseline scenario. Based on the quantitative model, government savings due to the use of PSI could increase from around 28 billion Euro in 2018 (i.e. 0.4% of public expenditures) to 250 billion Euro in 2030 (i.e. 3% of public expenditure). The overall cost savings are broken down by branch of government in the graph below.

Figure 57 –Cost savings from PSI for public sector bodies in different government branches (EU28, 2018-2030)

90 € Billions

60 €

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- € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

General public services Defence Public order and safety Economic affairs Environment protection Health Recreation, culture and religion Education Social protection

Source: Estimate by Deloitte based on Eurostat, Capgemini

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Based on our quantitative model, the figure above depicts estimated potential cost savings for public sector bodies in different branches of government until 2030. Under the baseline scenario, the development of cost savings would increase in s-curve fashion. According to the model, the highest increase of cost savings in absolute terms could be experienced in the area of social protection (from 7.3 billion Euro in 2018 to 66 billion in 2030) and general public services (from 7.2 billion Euro in 2018 to 60 billion Euro in 2030). However, cost savings would increase by the factor 7 to 9 between 2018 and 2030 for all sectors depicted above. Thus, while social protection and general public services could benefit most from cost savings through the use of PSI in absolute terms, all sectors would benefit similarly in relative terms. For improved visibility of their relative size, the cost savings for different government branches is depicted below in a bar chart for 2030.

Figure 58 – Total cost savings from opening up PSI per branch of government (EU28, 2030)

Social protection 66 €

Education 35 €

Recreation, culture and religion 7 €

Health 28 €

Housing and community amenities 6 €

Environment protection 5 €

Economic affairs 29 €

Public order and safety 12 €

Defence 8 €

General public services 60 €

0 € 10 € 20 € 30 € 40 € 50 € 60 € 70 € Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini. The figure below shows that most cost savings can potentially be realised at the central government level.

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Figure 59 –Cost savings from PSI for public sector bodies at different levels of government (EU28, 2018-2030)

200 €

Billions 160 €

120 €

80 €

40 €

- € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Central government State government Local government

Source: Estimate by Deloitte based on Eurostat, Capgemini The figure above depicts the potential development of cost savings from PSI for public sector bodies at different levels of government between 2018 and 2030. According to our quantitative model, cost savings in 2030 would be:

 160 billion Euros at the central government level (+142 billion Euros, 941%)  28 billion Euros at the state government level (+24 billion Euros, 700%)  67 billion Euros at the local government level (+60 billion Euros, 909%) Thus, most cost savings could be potentially be realised at the central government level. Additional government revenue In addition to cost savings, as already indicated in the section on the economic value, public administrations are also expected to benefit from increased revenue / taxation of PSI-based goods and services.

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Figure 60 –Additional government revenue from PSI (EU28, 2018-2030)

8.000 € 160 €

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4.000 € 80 € Billions

2.000 € 40 € from from BillionsPSI

- € - €

Overall Government OverallGovernment Revenue in Additional Government Revenue

Government revenue Government revenue incl. PSI sales Additional government revenue from PSI

Source: Estimate by Deloitte based on Eurostat, Capgemini. Dotted graphs relate to the left, primary axis. The figure above contrasts total government revenue and the potential additional government revenue from PSI between 2018 and 2030 under the baseline scenario. It shows that the additional government revenue from PSI could increase from about 9.5 billion Euro in 2018 (i.e. around 0.1% of total government revenue) to around 140 billion Euro in 2030 (i.e. around 1.9%). The figure below presents the estimated additional revenue in relation to different government branches. Again, social protection and general public services are expected to benefit most from additional revenue. The figure below presents the estimated additional revenue in relation to different government branches. Again, social protection and general public services are expected to benefit most from additional revenue.

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Figure 61 –Additional revenue from PSI for different government branches (EU28, 2018-2030)

40 €

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5 €

- €

General public services Defence Public order and safety Economic affairs Environment protection Housing and community amenities Health Recreation, culture and religion Education Social protection

Source: Estimate by Deloitte based on Eurostat, Capgemini The figure above presents the estimated development of additional government revenue from PSI per government branches between 2018 and 2030 for 28 EU Member States. Based on our model, this development follows an s-curve movement in all branches of government under the baseline scenario. At their highest point in growth in 2029, the additional revenues in absolute terms could amount to:

 36 billion Euro in the area of social protection (compared to 2.5 billion Euro in 2018); and  32 billion Euro in the area of general public services (compared to 2.2 billion in 2018) Euros at the state government level (+35 billion Euros, 975%) However, additional revenue in relative terms is expected to be roughly the same between 2018 and 2030 across all areas depicted above. Thus, while social protection and general public services could benefit most from additional revenues from PSI in absolute terms, all sectors would benefit similarly in relative terms. For improved visibility of their relative size, the additional government revenue for different government branches is depicted below in a bar chart for 2030.

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Figure 62 – Additional revenue from PSI for different government branches (EU28, 2030)

Social protection 36,1 €

Education 19,4 €

Recreation, culture and religion 3,6 €

Health 15,2 €

Housing and community amenities 3,1 €

Environment protection 2,8 €

Economic affairs 15,9 €

Public order and safety 6,3 €

Defence 4,6 €

General public services 32,8 €

0 € 10 € 20 € 30 € 40 € Billions

Source: Estimate by Deloitte based on Eurostat, Capgemini. The following graph breaks down the additional government revenue according to different levels of government.

Figure 63 –Additional government revenue from PSI at different levels of government (EU28, 2018-2030)

100 €

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Central government State government Local government

Source: Estimate by Deloitte based on Eurostat, Capgemini

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The figure above depicts the potential development of additional revenue from PSI for public sector bodies at different levels of government between 2018 and 2030. According to our quantitative model, additional government revenue from PSI in 2030 could amount to:

 84 billion Euros at the central government level (+76 billion Euros, 1050%)  39 billion Euros at the state government level (+35 billion Euros, 975%)  17 billion Euros at the local government level (+15 billion Euros, 850%) Thus, the highest amount of additional revenue could be potentially be realised at the central government level. Costs of opening up PSI The figure below visualises the costs of opening up PSI for all affected public sector bodies in comparison to the overall government revenue and expenditure. It can be seen that the estimated overall costs to open up PSI are only a minor fraction of the total government revenue and expenditure. Although an increasing number of public authorities open up their data, the total costs of opening up PSI (i.e. not the average costs per institution) are currently expected to decrease over time, mainly due to efficiency gains at the individual institutional level (through the use of PSI opened up by other public authorities, as well as an increasing level of digitisation within the public sector in general). A comparison of the overall benefits and costs of opening up PSI is provided in the following section.

Figure 64 –Costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure (EU28, 2018-2030)

10.000 € 10,0 €

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Government Government Revenue & - € - €

allstakeholders inBillions Total costs to open for PSI

Government expenditure Government revenue Total costs for all public stakeholders affected

Source: Estimate by Deloitte based on Eurostat, Capgemini, Deloitte (POPSIS), data gathered as part of interviews. Dotted graph relates to the left, primary axis.

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The graph depicts the costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure, aggregated for all 28 EU Member States over the timeframe 2018 to 2030. The graph shows that costs related to PSI are only a tiny fraction of the total government revenue and expenditure. The former is accounted for in single-digit billion Euro values, the latter one in accounted for in single-digit trillion Euro values. This means that PSI-related costs account for approx. around 0.1%-0.2% of overall government revenue and expenditure. Moreover, it shows that, whereas government revenue and expenditure increased steadily during this timeframe, it is expected that costs for public authorities are could decrease from around to 9.3 billion Euro today to around 4.0 billion in 2030 (i.e. -5.3 billion Euro, - 57%). Comparison of costs and benefits In this section the overall, annual economic benefits of opening PSI are contrasted with the overall, annual costs of opening PSI. The aggregated benefits depicted in the graph below concern the economic value of PSI, the related cost savings for public authorities, and the additional government revenue (all per year). The costs charted below are equal to those charted in the section above.

Figure 65 –Costs of opening up PSI for different types of public sector bodies (EU28, 2010-2030)

1.000 € 10,0 €

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600 € 6,0 €

Billions 400 € 4,0 €

200 € 2,0 € Benefits of Opening inPSI

- € - € Costs Costs of Opening inBillionsPSI

Benefits BS Costs BS

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, Shakespeare, Deloitte (POPSIS), data gathered as part of interviews. Dotted graph relates to the left, primary axis. As can be seen above, the economic benefits of opening PSI are around 250 billion Euro today and are expected to increase to approx. 930 billion Euro in 2030. In contrast, the costs associated with opening PSI today around 9.0 billion Euro today and are expected to decrease to approx. 4.0 billion Euro in 2030.

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Outcome of the qualitative analysis This section presents the insights emerging from the qualitative analysis of the baseline scenario policy package. Effectiveness

The effectiveness of the baseline scenario policy package is limited as this option does not allow to correct and intervene on the negative trends and developments linked to the different problem areas. For this reason, the effectiveness of the baseline scores a 0. Overall, compared to the other policy packages, this option would not have a very positive impact on the achievement of the general and specific objectives for each of the problem areas considered. Indeed, if the policy makers would not intervene at all on the problems related to locked data (in the area of research and public undertakings), re-usability of data through APIs, costs of data and exclusive agreements, it is unlikely that these issues would disappear in the medium term. As described in the baseline section of each individual policy option (see Chapter 7), the no- action would entail:

 For the problem area of research data, only a limited increase in data sharing and reuse, with persistent bottlenecks to achieving research and innovation goals but allowing re-adjustment of the underlying mechanisms (career paths, research evaluation methods, publication value chain) with respect of the differences between disciplines and scientific communities.  For the problem area of data held by para-public bodies, the strong competitive market will continue preventing utility operators to become open data first movers. Only small intrinsic motivation to get involved in open data strategies will exist. This means that data will continue to be not available for re-users and that new products and services will struggle to emerge. Furthermore, there will be no or limited efficiency gains for the public sector.  With respect to charging, no action would result in the persistence of an uneven playing field for companies on the PSI market, with bigger companies able to re-use data which are charged for while smaller companies and start-ups struggle. Competition would hence be limited and this would have implications on both the demand side (with more limited services available for citizens and consumers) and on the supply side (with a dominant position of some key players on the market).  With respect to APIs, if nothing is done on this topic and compared to the other policy packages, format and distribution will remain among the main barriers for data re-use. A baseline option would leave those issues open and mainly dependent to other factors such as market dynamics and private sector initiatives, hindering the possibility to progress toward fair competition, and to contribute to innovation.  Finally, in the area of exclusive agreements, it is likely that the number of exclusive agreements will increase in the context of new public-private partnerships and projects and especially within the context of smart cities.

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For all these reasons, the effectiveness of the baseline policy package is limited. Efficiency

The costs and benefits for this policy package are both limited and they balance each other’s perfectly thus justifying a 0 score for this criterion. The efficiency criterion corresponds to the analysis of the relation between the costs and benefits this policy package would bring to stakeholders. As discussed in the previous section on effectiveness, there would be no particular benefits in adopting this policy course of action as problems will continue evolving in the direction they have taken right now. However, this policy package would not impose any new cost on stakeholders either: indeed, the absence of new policy measures means that stakeholders simply need to continue complying with existing rules and do not have to adjust to any new requirement or situation. This makes this policy package far less impactful than the other two in terms of costs although the same applies for the benefits. This finding is also confirmed by the outcome of the quantitative model described in the previous section. For this reason, this policy package is neutral with respect to the efficiency as there is a perfect balance between the absence of new costs and the absence of benefits for stakeholders. Coherence

This option would be coherent with the current legislative framework (with the limited exception of the IPR rules) but not with the objectives of the Digital Single Market. This entails that the policy package scores a 0 for coherence. As there would be no intervention, coherence with existing legislation can largely be ensured. For instance, although stakeholders generally ask for more guidance on the relation between GDPR and the PSI Directive, our legal analysis shows that the two legislations are consistent and coherent overall. Similarly, the PSI Directive and the INSPIRE Directive work well together. However, it must be noted that the major challenge to coherence emerging from the evaluation of the Directive concerns the IPR regimes. As the baseline policy package would not intervene on this aspect, it cannot obtain a full score for the coherence criterion. Furthermore, there is a case for arguing that the barriers identified as part of the problem assessment would hinder the achievement of the Digital Single Market Strategy and therefore that no action would not be coherent with the overarching principles that guide decision-makers at the EU level. Qualitative scoring The table below presents a summary of the scoring for the qualitative criteria discussed above.

Assessment criteria Rating (-5 to + 5) Effectiveness Achievement of general and specific objectives 0

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Efficiency Relationship between costs and benefits 0 Coherence Coherence with existing initiatives 0 Sum 0 Average 0

The next section presents the result of the quantitative modelling for the baseline scenario.

8.2.2 Policy packages 1 and 2

This section provides a qualitative and quantitative analysis of the policy packages 1 and 2. Outcomes of the quantitative modelling Similar to the work done in relation to the evaluation part of the assignment, as well as the baseline scenario, we have used the quantitative models to estimate the impact of the packages of Policy Options per Member State526 from 2018 to 2030 on:

 Number of stakeholders “affected”527;  Direct and indirect economic value of PSI;  Number of persons (in-)directly employed in the area of PSI;  Cost savings from PSI for public authorities;  Additional government revenue from PSI; and  Costs of PSI for public sector bodies (i.e. contracting authorities, cultural institutions, para-public bodies, research institutions). For each of the above metrics, the following sections provide estimates based on the application of the model(s) that have been derived. Number of stakeholders affected The following graph displays the development of the estimated EU28 aggregate number of stakeholders affected.

526 Member State specific information is currently only available in the underlying Excel file but can be provided to the Commission upon request. 527 This means the total number of stakeholders that are currently concerned by the Directive or could be concerned in the future based on the content of the policy options.

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Figure 66 – Impact of the different Policy Packages on the number of different types of stakeholders affected by the PSI Directive (EU28, 2018-2030)

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Source: Estimate by Deloitte based on Eurostat, IDC, OECD, PwC, and various business associations. The graph depicts the estimated impact of the Policy Packages on the number of different types of stakeholders affected by the PSI Directive in the 28 EU Member States between 2018 and 2030. It can be seen that the impacts are expected to have an effect as of 2020. This could, however, be subject to change depending on the speed of the legislative process. In 2018, today, the total economic value of PSI is expected to be around 1.1 million Euro for the Baseline Scenario and all Policy Packages. In 2028, i.e. the number of different types of stakeholders affected by the PSI Directive could increase to around:

 3.3 million if PO1 was introduced (+2.2 million, +200%); and  3.6 million if PO2 was introduced (+2.1 billion, +191%). After 2028, the economic value of PSI is expected to decrease slightly under all Policy Packages but would still be higher compared to the baseline scenario. Economic value of PSI In the below graph, the estimated total economic value of PSI is provided (containing the direct and indirect economic value of PSI). According to Vickery528 and Shakespeare529, the indirect economic value is between 3.5 and 3.78 times as large as the direct economic value.

528 See: http://ec.europa.eu/newsroom/document.cfm?doc_id=1093 529 See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198752/13-744- shakespeare-review-of-public-sector-information.pdf

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Figure 67 - Impact of the different Policy Packages on the total economic value of PSI (EU28, 2018-2030)

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Baseline Scenario Policy Option 1 Policy Option 2

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. The graph depicts the estimated impact of the Policy Packages on the development of the total economic value of PSI in the 28 EU Member States between 2018 and 2030. It can be seen that the impacts are expected to have an effect as of 2020. This could, however, be subject to change depending on the speed of the legislative process. In 2018, today, the total economic value of PSI is expected to be around 236 billion Euro for the Baseline Scenario and all Policy Packages. In 2028, i.e. the year in which the relative differences in economic value are expected to be largest between the Policy Packages, the value could increase to around:

 872 billion Euro if PO1 was introduced (+636 billion Euro, 269%); and  969 billion Euro if PO2 was introduced (+733 billion Euro, 311%). After 2028, the economic value of PSI is expected to decrease slightly under all Policy Packages but would still be higher compared to the baseline scenario. This is due to general saturation of the market in line with typical s-curve market trends: markets evolve from infancy to maturity with different growth rates and market values associated with each stage of development. Moreover, it can reasonably be assumed that, compared to the baseline scenario, the implementation of the Policy Packages could push the PSI-market to its limits which could result into a shorter saturation phase and, thus, to a steeper decline of the market after it reached its peak in 2028 compared to the baseline scenario. The following graph displays the impact of the Policy Packages compared to the Baseline scenario with regard to the direct economic value of PSI.

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Figure 68 – Impact of the different Policy Packages on the direct economic value of PSI (EU28, 2018-2030)

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Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. In 2018, today, the total economic value of PSI is expected to be around 52 billion Euro for the Baseline Scenario and all Policy Packages. In 2028, i.e. the year in which the relative differences in economic value are expected to be largest between the Policy Packages, the value could increase to around:

 194 billion Euro if PO1 was introduced (+142 billion Euro, 273%); and  215 billion Euro if PO2 was introduced (+163 billion Euro, 313%). Unlike in the section concerning the evaluation and the baseline scenario, we have not charted the total economic value of PSI per sector under each of the Policy Packages as this graph would not be understandable to outside readers. Unlike in the section concerning the evaluation and the baseline scenario, we have not charted the total economic value of PSI per sector under each of the Policy Packages as this graph would not be understandable to outside readers. Number of persons employed The following graph displays the development of the estimated number of persons employed in the area of PSI.

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Figure 69 – Impact of the different Policy Packages on the number of persons employed in the (data-driven) economy (EU28, 2018-2030)

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Source: Estimate by Deloitte based on Eurostat, Capgemini, and IDC. The graph depicts the estimated impact of the Policy Packages on the number of persons employed in the (data-driven) economy in the 28 EU Member States between 2018 and 2030. It can be seen that the impacts are expected to have an effect as of 2020. This could, however, be subject to change depending on the speed of the legislative process. In 2018, today, the number of persons employed is expected to be around 64,000 persons for the Baseline Scenario and all Policy Packages. In 2027, i.e. the year in which the relative differences in the number of persons employed in the (data-driven) economy are expected to be largest between the Policy Packages, the value could increase to around:

 709,000 persons if PO1 was introduced (+645,000 persons, +1,008%); and  795,000 if PO2 was introduced (+731,000 persons, +1,142%). After 2028, the economic value of PSI is expected to decrease slightly under all Policy Packages but would still be higher compared to the baseline scenario. Cost savings from PSI for public authorities At the same time governments are opening up their data, the can cut costs in other parts of government activity through the use of PSI. The gross savings are visualised below.

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Figure 70 – Impact of the different Policy Packages on cost savings from PSI for public sector bodies (EU28, 2018-2030)

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Source: Estimate by Deloitte based on Eurostat, Capgemini. The graph depicts the estimated impact of the Policy Packages on the development of cost savings from PSI in the 28 EU Member States between 2018 and 2030. It can be seen that the impacts are expected to have an effect as of 2020. This could, however, be subject to change depending on the speed of the legislative process. In 2018, today, the total cost savings from PSI is expected to be around 28 billion Euro for the Baseline Scenario and all Policy Packages. In 2030 the value could increase to around:

 311 billion Euro if PO1 was introduced (+283 billion Euro, 1,110%); and  336 billion Euro if PO2 was introduced (+308 billion Euro, 1,200%). After 2029, the marginal rate of growth for cost savings from PSI is expected to decrease under all Policy Packages but would still be higher compared to the baseline scenario. This is due to general saturation of the market in line with typical s-curve market trends: Markets evolve from infancy to maturity with different growth rates and market values associated with each stage of development. At a certain point, it may be assumed that all potentials for cost savings based on PSI may already have been exploited. Moreover, it can reasonably be assumed that, compared to the baseline scenario, the implementation of the Policy Packages could push the PSI-market to its limits which could result into a shorter saturation phase and, thus, to a steeper decline of the market after it reached its peak in 2028 compared to the baseline scenario Unlike in the section concerning the evaluation and the baseline scenario, we have not charted the cost savings per government branch under each of the Policy Packages as this graph would not be understandable to outside readers.

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Additional government revenue In addition to cost savings, as already indicated in the section on the economic value, public administrations are also expected to benefit from increased revenue / taxation of PSI-based goods and services.

Figure 71 – Impact of the different Policy Packages on the additional government revenue from PSI (EU28, 2018-2030)

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Baseline scenario Policy Option 1 Policy Option 2

Source: Estimate by Deloitte based on Eurostat, Capgemini. The graph above depicts the estimated impact of the Policy Packages on the development of additional government revenues from PSI in the 28 EU Member States between 2018 and 2030. It can be seen that the impacts are expected to have an effect as of 2020. This could, however, be subject to change depending on the speed of the legislative process. In 2018, today, the total additional revenue from PSI is expected to be around 9.5 billion Euro for the Baseline Scenario and all Policy Packages. In 2029, i.e. the year in which the relative differences in economic value are expected to be largest between the Policy Packages, the value could increase to around:

 178 billion Euro if PO1 was introduced (+168.5 billion Euro, 1,873%); and  196 billion Euro if PO2 was introduced (+186,5 billion Euro, 2,063%). After 2029, the marginal rate of growth for cost savings from PSI is expected to decrease under all Policy Packages but would still be higher compared to the baseline scenario. This is due to general saturation of the market in line with typical s-curve market trends: markets evolve from infancy to maturity with different growth rates and market values associated with each stage of development. At a certain point, it may be assumed that all potentials to generate additional value from PSI may already have been exploited.

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Moreover, it can reasonably be assumed that, compared to the baseline scenario, the implementation of the Policy Packages could push the PSI-market to its limits which could result into a shorter saturation phase and, thus, to a steeper decline of the market after it reached its peak in 2028 compared to the baseline scenario. Unlike in the section concerning the evaluation and the baseline scenario, we have not charted the additional government revenue per government branch under each of the Policy Options as this graph would not be understandable to outside readers. Costs of opening up PSI The figure below visualises the costs of opening up PSI for all affected public sector bodies in comparison to the overall government revenue and expenditure.

Figure 72 – Impact of the different Policy Packages on the costs of opening up PSI for all affected public sector bodies (EU28, 2018-2030)

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Baseline Scenario Policy Option 1 Policy Option 2

Source: Estimate by Deloitte based on Eurostat, Capgemini, Deloitte (POPSIS), data gathered as part of interviews. The graph depicts the estimated impact of the Policy Packages on the development of the total costs for opening up PSI for all affected public sector bodies in the 28 EU Member States between 2018 and 2030. It can be seen that the impacts are expected to have an effect as of 2020. This could, however, be subject to change depending on the speed of the legislative process. In 2018, today, the total cost is expected to be around 9.1 billion Euro for the Baseline Scenario and all Policy Packages. In 2026, i.e. the year in which the relative differences in costs are expected to be largest between the Policy Packages, the value could decrease to around:

 2.8 billion Euro if PO1 was introduced (-6.3 billion Euro, -69%); and

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 2.0 billion Euro if PO2 was introduced (-7.1 billion Euro, -78%). After 2028, the costs to open up PSI are expected to increase slightly under all Policy Packages but would still be lower compared to the baseline scenario.530 Comparison of costs and benefits In this section the overall, annual economic benefits of opening PSI are contrasted with the overall, annual costs of opening PSI for the Policy Packages relative to the baseline scenario. The aggregated benefits depicted in the graph below concern the economic value of PSI, the related cost savings for public authorities, and the additional government revenue (all per year). The costs charted below are equal to those charted in the section above. This is also presented in the graph below.

Figure 73 – Impact of the different Policy Options on the costs and benefits of opening up PSI for different types of public sector bodies (EU28, 2010-2030)

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Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, Shakespeare, Deloitte (POPSIS), data gathered as part of interviews. As can be seen above, the economic benefits of opening PSI are around 250 billion Euro today and are expected to increase to approx. 1.3-1.5 trillion Euro in 2030 depending on the specific Policy Package. In contrast, the costs associated with opening PSI today around 9.0

530 Markets evolve from infancy to maturity with varying growth rates and market values associated with each stage of development. Moreover, it can reasonably be assumed that, compared to the baseline scenario, the implementation of the Policy Options could decrease the costs associated with PSI in such a form that data that is opened only towards the end of th decade could be more expensive to open than readily available “low hanging fruits”.

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billion Euro today and are expected to decrease to approx. 2.6-2.8 billion Euro in 2030 depending on the specific Policy Package. The following graph concerns shows the relation of costs and benefits if not the total but only the direct economic value is considered.

Figure 74 – Impact of the different Policy Packages on the costs and direct benefits of opening up PSI for

different types of public sector bodies (EU28, 2010-2030)

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Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, Shakespeare, Deloitte (POPSIS), data gathered as part of interviews. Outcome of the qualitative analysis for Policy Package 1 Effectiveness

This policy package scores a 2 with respect to the effectiveness criterion as it would have more benefits than the baseline scenario although, due to the low level of legislative intervention, it could not solve all issues related to the problem areas examined. Overall, this policy package would have a positive impact on the achievement of the general and specific objectives although without addressing entirely all problems identified. In particular:

 Extend the scope of the PSI Directive to research and educational establishments to cover administrative data and research results, focusing on the re-usability of already accessible data, would improve the re-usability of a number of datasets and therefore partially address the related barrier. Nonetheless, the focus would remain on already accessible research data and therefore this option might not create

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sufficient incentives for unlocking other datasets. This means that the problem of locked research data would not be entirely solved.  A similar conclusion can be drawn on the sub-option concerning the extension of the scope of the PSI Directive to para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). Indeed, if this approach would improve re-usability of data overall, it would not push these bodies to further unlock other datasets. It would hence only be effective to some extent.  Amending article 6 to limit recourse to exceptions to marginal cost charging, deleting the exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c) would be effective in improving the current situation and lowering economic barriers for the re-use of data. Nonetheless, economic barriers would still remain as the other two exceptions would still be applicable and therefore costs of data for a number of datasets might remain relatively high for certain categories of stakeholders.  Defining a limited set of high-value datasets to be released as open data (charging limited to marginal cost, open license) across the EU on a basis of a Delegated Act would be better off than the baseline scenario as a solution for the problems of access to and costs of data. However, it would not solve all economic barriers to- reuse altogether (since not all datasets would enter into this list) and it would entail a loss of revenue for PSBs as well as some practical costs for implementation.  Amending article 5 in order to entice public sector bodies to make dynamic data available for re-use immediately after collection via an API will improve availability and uptake of APIs across Europe without disrupting the current trends and dynamics. As described in the assessment of this specific policy option, this approach would be the most proportionate as it would encourage front runner PSBs to start making use of APIs immediately while also leaving some marge of manoeuvre for public bodies which are not ready yet. This “soft push” would already significantly contribute to a more API friendly policy without nonetheless making all PSBs’ relevant datasets available through APIs.  Modify article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity would be overall effective in ensuring a level-playing field for re-users and addressing the current trends in terms of exclusive agreements. It would address the raising concerns in terms of data exclusivity by establishing a new tool at the disposal of stakeholders as a sort of “emergency brake”. However, this ex post mechanism might be too complex to use for a number of stakeholders and could intervene only after the agreement concerned is already concluded. As the analysis of these sub-options composing PO1 proves, this policy approach would be more effective than the baseline in addressing a number of challenges. However, it would

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not be able to solve all of them altogether as reflected in the effectiveness score provided in the coming section. Efficiency

Policy package 2 obtains a very high score in terms of efficiency (4) as, compared to the other policy packages, it brings considerable benefits to stakeholders while limiting the costs. The analysis suggests that PO1 is very efficient. Indeed, the relationship between the costs of this policy package on the one hand and its benefits on the other is positive: although legislative modifications to the PSI Directive would entail some costs for stakeholders (and PSBs in particular, see table below) this policy package’s benefits would by far outweigh the costs as shown in our quantitative modelling (see Section 8.3).

Policy sub-option Costs on PSBs One-off Recurrent Dynamic Direct costs Approx. 50,000 EUR 531 Max. 56 million EUR per year532 data/APIs per API set-up. Depending on the number public sector bodies that are enticed by the action, the establishment and maintenance of API platforms could range from 30,000 to 2,000,000 Euro per year per Member State (also depending on the quality and functionalities of the APIs, as well as the characteristics of the datasets concerned)533. Indirect costs Training costs for public N/A sector officials: Up to maximum 300,000 Euro per Member State534 Charging Direct costs N/A N/A Indirect costs Approx. 150 million EUR per year535 Loss of revenue due to charging at marginal costs for datasets, which could benefit from

531 An example cost of implementing an API for a medium sized application. However, this cost would be optional since a hard obligation to use APIs would only apply to a certain number of high-value datasets. 532 The maximum cost of making available 14 categories of high-value datasets in all Member States via APIs (see. 28 of the Impact Assessment) 533 In its guidelines on datasets, the EU Commission has identified 14 categories of high-value datasets Member States may have to open in high quality and through API access. These estimates refer to the establishment of APIs for the 14 high-value datasets identified. 534 Based on estimates available for Poland 535 It is estimated that by eliminating some of the exceptions to the marginal cost principle and making some of the high-value datasets free by default, the overall loss of income for public sector bodies will be approximately a half of the amount that would they would lose if charging was abolished entirely (300 million EUR – see. p. 30 of the Impact Assessment).

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exemptions before (e.g. business registers) ranging from 10,000 Euro536 to 6 million537 Euro per dataset concerned per year Data from Direct costs N/A In between 2,000 euro and 20,000 per public public undertaking falling in the scope of the Directive. undertakings in transport and utilities Indirect costs N/A N/A sector Research data Direct costs N/A Based on the assumption that the administrative and legal cost (licensing issues, checking third party rights etc.) is 5,000 EUR per open science repository. There are approximately 1500 open science repositories currently in the EU. Indirect costs N/A N/A Non- Direct costs N/A Based on the assumption that 10 cases per year exclusivity would need to undergo an ex-ante check, which would require 40 man-days split between the public sector body concerned and the national competition authority (so max. 80,000 EUR per Member State per year). Indirect costs N/A N/A Coherence

Policy package 1 would be more coherent than the other options not only with respect to other existing EU initiatives but also with regard to the history and approach underpinning the PSI legislation thus far. For this reason it gets a score of 4 to this criterion. This policy package is overall coherent with other policy initiatives at the EU and Member States level. No issues could be found in this respect for any of the measures contained in this package. Even with respect to the other EU initiatives on open research data for instance538, the policy option contained in PO1 would not overlap but rather complement the approach taken by other DGs and by DG Research in particular. In fact, focusing on the re-usability of already available data, the PSI Directive would only provide a level-playing field for PSBs and re-users without dictating any open access policy in particular. Moreover, this policy package is in line with the spirit and the history of the PSI Directive: indeed, it establishes further re-usability of data through incremental changes and

536 Minimum revenue per dataset emerging from the data collection 537 See for example the loss of revenue of IGN in France. Rapport au Premier Ministres, Ouverture des données publiques, Les exceptions au principe de gratuité sont-elles toutes légitimes ? Mohammed Adnène TROJETTE, Avec le concours de Rémy LOMBARD, 2013, http://www.ladocumentationfrancaise.fr/var/storage/rapports- publics/134000739.pdf 538 For instance the open data policy of Horizon 2020 or the European Commission recommendations of 17 July 2012 on access to and preservation of scientific information, see: http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32012H0417&rid=1

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proportionate measures. For instance, as it happened for cultural institutions which were brought under the Directive in 2013, research data and data held by public undertakings would not fall entirely under the scope of the legislation thus leaving some time to the bodies concerned to adapt to the new rules. Also based on the experience from cultural institutions, this way of proceeding seems not only effective but also coherent with the approach taken in the past by the European Commission. Qualitative scoring The table below presents the qualitative scoring for PO1 as discussed in the previous sections. Policy package 1 obtains very positive scores both with respect to efficiency and coherence. However, its performance in terms of effectiveness is less optimal.

Table 26 - Qualitative scoring PO1

Assessment criteria Rating (-5 to + 5) Effectiveness Achievement of general and specific objectives 2 Efficiency Relationship between costs and benefits 4 Coherence Coherence with existing initiatives 4 Sum 10 Average 3,3 Outcome of the qualitative analysis for Policy Package 2 Effectiveness

With a score of 4 to the effectiveness criterion, policy package 2 would be the most effective option due to the high intensity of the legislative intervention which would allow to get to the roots of the problems and address their negative consequences. Overall, this option would have a very positive impact on the achievement of the general and specific objectives as it would significantly address all problems identified and notably:

 With respect to the issue of locked research data, extending the scope of the PSI Directive to research and educational establishments so as to cover administrative data and research results and to mandate educational and research establishments and research funding bodies to implement open access policies would be very helpful in making more research datasets available. As described in the assessment of this specific policy sub-option, this approach would be highly beneficial as it would simply make data available for re-use (although not addressing the root causes of this lack of availability of research data). The consequences for re-users would hence be very positive as re-usability and availability of data would dramatically increase.  Similarly, a full extension of the PSI Directive to para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU 412

would be extremely effective in unlocking data held by these bodies. The new obligation would actually improve tremendously the availability of data on the energy and transport sector and have transformative effects for re-users provoking, as a consequence, a substantial increase in data based products and services.  Imposing a zero charge approach for all datasets would also have transformative effects. Competition between players in fact would be fully ensured as companies of all sizes would have equal access to data. This means that start-ups and SMEs would be able to compete with bigger companies solely on the basis of the quality of their products and services, without being disadvantaged in terms of lack of resources. As a consequence, consumers would hence have more choice and innovation would greatly benefit.  Amending article 5 in order to create an obligation to make dynamic data available for re-use immediately after collection via an API would be equally effective in fostering innovation and the establishment of new products and services. Indeed, the obligation for PSBs to establish APIs would tremendously help re-users who are more and more relying on this technology. The obligation would also create a level- playing field across Europe and facilitate the emergence of cross-border products and services.  Finally, prohibiting the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity is the most effective way of addressing the challenges linked to exclusivity. Indeed, this approach would allow to tackle the barrier at its roots and address it once and for all. As the analysis of the specific actions composing PO2 shows, this policy package would be the most successful in responding to all types of problems identified through this assessment. Hence, this policy package scores very high for the effectiveness criterion. Efficiency

Due to the high costs that it would impose to the stakeholders, policy option 2 only gets a score of 2 with respect to the efficiency criterion. Indeed, its balance between costs and benefits is worse off than the balance for policy package 2 (although still better than the baseline). If PO2 is undoubtedly very effective in reaching the policy objectives laid down in Section 6.2 it does not scores equally well in terms of efficiency. Indeed, if the benefits are undeniably high, so are the costs deriving from the new obligations. Although it is very difficult to establish orders of magnitude of costs for each of the actions included in PO2, the following points can be brought to the attention:

 With respect to extending the PSI obligations to all research and educational establishments as well as para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU, economic implications for stakeholders could be estimated in the order of billions. There are currently around 147,000 para-public bodies and private entities carrying out public tasks and, although no exact figures could be establish in relation to research and educational

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establishments, they amount nonetheless to several thousands. Knowing that compliance costs for the PSI Directive can go up to 20.000 euro per year, it is safe to assume that the overall cost of these policy options would reach such figures.  In terms of charging, it was established that moving to a zero charging approach would result to a loss of revenue of around 300 million Euro per year for EU Member States. As discussed in length in the evaluation part, the problem does not lie only in the loss of revenue itself but also in the capacity of Member States to replace this revenue generated funding with other public funding. At this stage, based on available data, there is no certainty that this replacement of funding could take place for all public sector bodies concerned539.  Concerning APIs, obliging all PSBs in the Europe to provide dynamic data through this technology would cost significantly more than 56 mio Euro per year as calculated for PO1. This is because the previous policy package only considers a pool of 14 datasets to be provided by APIs while PO2 covers all potentially relevant datasets and all public sector bodies.  Finally, with respect to exclusive agreements, prohibiting agreements which might lead to de facto exclusivity would have monetary repercussions not only on PSBs but also on companies and other players entering into partnerships with the public sector. Potentially, the number of agreements that would fall in this category could be extremely high if one considers as risky, for instance, all kinds of initiatives going on in the domain of smart cities. As also emphasized in the economic model shown in the coming sections, despites the highs costs for compliance and implementation, this policy package is still efficient as the benefits would outweigh the costs. However, its efficiency is more limited than for PO1, as the ratio between the costs and the benefits is less positive. Coherence

Policy package 2 can be considered as generally coherent although less so than policy package 1. This is linked to the potential issues it raises in the areas of open research data and data held by private entities and para-public bodies carrying out public tasks. For this reason, the score of policy package 2 for this criterion is a 2. Finally, PO2 is overall coherent with the other relevant policy initiatives at the EU and Member States level. However, a number of issues emerged from the analysis and especially with respect to the aspect of open research data. Indeed, in this domain the European Commission is already taking a number of actions aimed at fostering opening up and re-usability of data from a bottom up perspective and without imposing obligations on the research establishments and on the researchers. This approach in fact aims at addressing and intervening on the root causes underlying the limited availability of data (e.g. the lack of incentives for researchers, the IPR concerns) more than imposing the

539 See Section 4.3.2 Changes to the charging provisions.

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achievement of a specific output (the opening up and re-usability of research data). PO2 would proceed from the opposite perspective by imposing an obligation to research and educational establishments without addressing the reasons underpinning the current situation. Although the two approaches are not legally incompatible (also considering that one relies more on soft law while the other entails regulatory intervention), coherence issues might nonetheless arise. Furthermore, with respect to the extension of the Directive to para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU, stakeholders have often mentioned the risk of establishing rules which overlap with other legislative initiatives at the EU level. For instance, the Intelligent Transport Systems Action Plan and Directive540 already dictates a number of data sharing rules to public and private undertakings operating in the area of transport. Similarly, the new package of measures on Clean Energy541 contains provisions on data re-usability for private and public energy providers. Therefore, although no major coherence issues could be identified for PO2, its performance with respect to this criterion cannot obtain a full score. Qualitative scoring The tables below presents the qualitative scoring for PO1 as discussed in the previous sections. Policy package 2 is extremely effective (more than PO1 and the baseline), as shown in the score contained in the table below. However, its evaluation for the criteria of efficiency and coherence is less positive than for PO1 due to a number of criticisms illustrated in the previous sections.

Table 27 - Qualitative scoring PO2

Assessment criteria Rating (-5 to + 5) Effectiveness Achievement of general and specific objectives 4 Efficiency Relationship between costs and benefits 2 Coherence Coherence with existing initiatives 2 Sum 8 Average 2,6

In the next sections, we present the outcomes of the quantitative modelling for these two policy packages.

540 See : https://ec.europa.eu/transport/themes/its/road/action_plan_en 541 See : https://ec.europa.eu/energy/en/topics/energy-strategy-and-energy-union/clean-energy-all- europeans

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8.3 Comparison of the policy packages In line with the European Commission’s Better Regulation Guidelines542 and its toolbox543, most importantly tool 63, a Multi-Criteria Analysis (MCA) has been carried out based on the data gathered as part of the previous study process. The MCA is a largely qualitative analysis of the baseline scenario and the Policy Packages, based on ratings and rankings with quantitative data supporting the assessment. It is an alternative to the cost benefit analysis, when the (quantitative) information necessary for such an analysis is not available, controversial or volatile (for instance when robust methods to monetize different impacts are not available). The MCA typically consists of three distinct steps:

 Step 1: Establish indicators or assessment criteria against which the baseline scenario and Policy Options or Packages are assessed and compared. This includes establishing the performance of a Policy Option/Policy Package (i.e. the magnitude of its impact), the weight of the criteria in relation to each other, as well as the direction of the impact (negative / positive). The analysis of the policy package per each of the criteria selected is presented in the previous sections.  Step 2: Build an outranking matrix in which the scores for the baseline scenario and the Policy Options/Policy Package and criteria are provided in order to summarise how they compare towards each other in relation to the established criteria; and  Step 3: Prepare a so-called permutation matrix that enables the selection of a final ranking of all the possible Policy Options/Policy Package towards each other. This means that not only a preferred Policy Option/Policy Package can be selected but also a ranking of all other options towards each other is possible.

The sub-section below provides the results of the MCA.

Multi-Criteria-Analysis as widely-used tool in policy evaluations, impact assessment studies, and feasibility studies that aims at drawing a conclusion on the comparative rating of potential policy solutions. Deloitte has carried out such analysis in previous studies on behalf of various Directorate- Generals of the European Commission. As part of this Feasibility Study, Deloitte has carried out the MCA in full detail, as exemplified in the Better regulation Guidelines in order to take full account of the complexity of the subject matter and the level of granularity of the previous analyses carried out. Thus, the complex MCA as presented in the final report of this Feasibility Study is regarded as an added value to the study, much less than it is seen as adding complexity to an already very difficult subject.

542 https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf 543 https://ec.europa.eu/info/sites/info/files/better-regulation-toolbox_1.pdf

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For each of the aforementioned steps, this section provides the key results and outputs of the MCA.

8.3.1 Step 1: Assessment criteria and rating

In line with step 1 of the European Commission’s MCA approach, the assessment criteria and the respective rating of the baseline scenario and the Policy Packages are provided in Section 8.2. The ratings of the potential impacts of the baseline scenario and the Policy Packages are derived from the analysis detailed in the sections above. Table 28 – Assessment criteria, weighting, and rating of the baseline scenario and the Policy Packages

Policy Coherence Effectiveness Efficiency Package Weight 1 2 2 BS 0 0 0 PO1 4 2 4 PO2 2 4 2

Source: Deloitte As can be seen from the table above, the assessment criteria have not been weighted equally. In fact, a higher weight has been given to the effectiveness and efficiency. The rating of 2 means that effectiveness and efficiency are regarded twice as important as coherence. In terms of ratings, a scale from -5 to +5 was used – although the Policy Options consistently received positive scores ranging from 0 to 4. By default, the baseline scenario is – in line with the Better Regulation Guidelines – always ranked 0 across the criteria as it serves as the base for comparative measurement of the Policy Options.

8.3.2 Step 2: Outranking matrix

In line with step 2, the outranking matrix for the baseline scenario and the Policy Packages is provided below. The aim of the outranking matrix is to summarise how the potential impacts of the baseline scenario and Policy Packages compare against another for all possible pairs of Policy Packages. Practically, this means that for a given pair of options (e.g. PO1 and PO2, see the light blue cell in the table below), the weightings544 for each criterion are summed up for those criteria

544 Only the weightings are added. It makes no difference how much better each option is in respect of each of the criteria.

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where PO1 is outranking PO2 (i.e. the criteria in relation to which PO1 has a higher score than / is outranking PO2, see the light green cells in the table above). The outranking matrix is provided in the following table. Table 29 – Outranking matrix for the baseline scenario and the Policy Options concerning natural persons

BS PO1 PO2 BS 0 0 0 PO1 5 0 3 PO2 5 2 0

Source: Deloitte Naturally, the combinations of BS-BS, PO1-PO1, etc. have received a score of 0 as it does not make sense to compare these. In essence, the table shows that the impacts of the Policy Packages outrank those of the baseline scenario. Moreover, it shows that the potential impacts of PO1 outrank those of PO2.

8.3.3 Step 3: Permutation matrix

As a third step, the outranking matrix is transformed into a permutation matrix. A permutation is a distinct combination of baseline scenario and Policy Packages. The aim of this step is to establish a decision matrix in order to select a final ranking of all the possible options that maximise pair-wise agreement (and minimise disagreement). The baseline scenario and Policy Packages are then scored by summing the elements from the outranking matrix for each policy pair which make up a given ranking of the Policy Packages. The optimal ranking is the one with the highest score. Since this study concerns the baseline scenario and two Policy Packages, i.e. three elements, three permutations (i.e. 3 * 2 * 1 = 6) need to be assessed and compared towards each other. An overview of all 6 possible permutations of the baseline scenario and the Policy Packages is provided below.

Table 30 - Possible permutations of the baseline scenario and the Policy Packages

# 1st element 2nd element 3rd element 1 BS PO1 PO2 2 BS PO2 PO1 3 PO1 BS PO2 4 PO1 PO2 BS

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5 PO2 PO1 BS 6 PO2 BS PO1

Source: Deloitte Next, the different so-called policy pairing545 within these permutations need to be established in order to sum up the elements from the outranking matrix for each policy pair. As each permutation consists of the baseline scenario and the two Policy Packages, i.e. three elements, three pairs of Policy Packages are possible within each permutation.

Table 31 - Policy pairings within the possible permutations

# 1st pairing 2nd pairing 3rd pairing 1 BS PO1 BS PO2 PO1 PO 2 2 BS PO2 BS PO1 PO2 PO1 3 PO1 BS PO1 PO2 BS PO2 4 PO1 PO2 PO1 BS PO2 BS 5 PO2 PO1 PO2 BS PO1 BS 6 PO2 BS PO2 PO1 BS PO1

Source: Deloitte For each of the policy pairings presented above, the summative weightings from the outranking matrix now have to be summed up. These sums are called coefficients of policy pairings. In relation to the first policy pairing of the third permutation (see light grey box in the next table), a value of five needs to be devised based on the outranking matrix. The policy permutation with the highest total coefficient, based on the scores of each of the policy pairings, is going to be the optimal permutation of the baseline scenario and the Policy Packages. This means that the first option within this permutation is the preferred Policy Package. Moreover, this permutation-based approach enables a decision not only on the preferred Policy Package but also ranks the less favoured Policy Packages. The coefficient are provided in the table below.

Table 32 – Coefficients of policy pairings

# 1st pairing 2nd pairing 3rd pairing Total 1 0 0 3 3

545 These policy pairings should not be confused with the Policy Options assessed as part of this Feasibility Study. The notion policy pairings reflects the mathematically possible combinations of the baseline scenario and the Policy Options. The notion has been used in order to comply with the Better Regulation Guidelines.

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# 1st pairing 2nd pairing 3rd pairing Total 2 0 0 2 2 3 5 3 0 8 4 3 5 5 13 5 2 5 5 12 6 5 2 0 7

Source: Deloitte As can be seen from the table above, the permutation with the highest coefficient based on the outranking scores of its policy pairings is #21, i.e. PO1-PO2-BS. This means the following:

 PO1 is the preferred Policy Package as it provides the most favourable combination of coherence, effectiveness, and efficiency;  If PO1 cannot be implemented, PO2 would be the second most favourable.  The least favourable option is the baseline scenario.

8.4 Preferred Policy Option: Outcomes of the quantitative modelling According to the Multi-Criteria-Analysis, PO1 is the preferred Policy Package as it provides the most favourable combination of coherence, effectiveness, and efficiency. Similar to the work done in relation to the evaluation part of the assignment, as well as the baseline scenario and the Policy Packages, we have used the quantitative models to estimate the relative impact of the different elements of PO1 per Member State546 from 2018 to 2030 on:

 Number of stakeholders “affected”547;  Direct and indirect economic value of PSI;  Number of persons (in-)directly employed in the area of PSI;  Cost savings from PSI for public authorities;  Additional government revenue from PSI; and  Costs of PSI for public sector bodies (i.e. contracting authorities, cultural institutions, para-public bodies, research institutions).

546 Member State specific information is currently only available in the underlying Excel file but can be provided to the Commission upon request. 547 This means the total number of stakeholders that are currently concerned by the Directive or could be concerned in the future based on the content of the policy options.

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For each of the above metrics, the following sections provide estimates based on the application of the model(s) that have been derived.

8.4.1 Number of stakeholders affected

The following graph displays the development of the estimated EU28 aggregate number of stakeholders affected.

Figure 75 – Impacts of the different elements of the preferred Policy Package on the number of different types of stakeholders affected by the PSI Directive (EU28, 2018-2030)

3,5

Millions 3,0

2,5

2,0

1,5

1,0 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Baseline scenario Charging Net Effect Research institutions Net Effect Para-public bodies Net Effect APIs Net Effect Exclusive agreements Net Effect

Source: Estimate by Deloitte based on Eurostat, IDC, OECD, PwC, and various business associations. The graph depicts the estimated impacts of the different elements of the preferred Policy Package on the number of different types of stakeholders affected by the PSI Directive in the 28 EU Member States between 2018 and 2030. Thus, the dotted lines represent the individual economic value that each element of the Policy Package adds to the baseline scenario to achieve the overall impact. The shares of contributions of the individual elements can be derived from the table of assumptions (Table 22).

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8.4.2 Economic value of PSI

In the below graph, the estimated total economic value of PSI is provided (containing the direct and indirect economic value of PSI). According to Vickery548 and Shakespeare549, the indirect economic value is between 3.5 and 3.78 times as large as the direct economic value.

Figure 76 – Impacts of the different elements of the preferred Policy Package on the total economic value of PSI (EU28, 2018-2030)

1.000 €

900 € Billions 800 €

700 €

600 €

500 €

400 €

300 €

200 € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Baseline Scenario Charging Net Effect Research institutions Net Effect Para-public bodies Net Effect APIs Net Effect Exclusive agreements Net Effect

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. The following graph presents the impacts of PO1 on the direct economic value of PSI.

548 See: http://ec.europa.eu/newsroom/document.cfm?doc_id=1093 549 See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198752/13-744- shakespeare-review-of-public-sector-information.pdf

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Figure 77 – Impacts of the different elements of the preferred Policy Package on the direct economic value of PSI (EU28, 2018-2030)

225 €

200 € Billions 175 €

150 €

125 €

100 €

75 €

50 € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Baseline Scenario Charging Net Effect Research institutions Net Effect Para-public bodies Net Effect APIs Net Effect Exclusive agreements Net Effect

Source: Estimate by Deloitte based on Eurostat, Capgemini, MEPSIR, Vickery, and Shakespeare. The graph depicts the estimated individual contributions of the element of the preferred Policy Package on the development of the total / direct economic value of PSI in the 28 EU Member States between 2018 and 2030. Thus, the dotted lines represent the individual economic value that each element of the Policy Package adds to the baseline scenario to achieve the overall impact. The shares of contributions of the individual elements can be derived from the table of assumptions (Table 22). Unlike in the section concerning the evaluation and the baseline scenario, we have not charted the total impact on the economic value of PSI per element of the Policy Package as this graph would not be understandable to outside readers.

8.4.3 Number of persons employed

The following graph displays the development of the estimated number of persons employed in the area of PSI.

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Figure 78 – Impacts of the different elements of the preferred Policy Package on the number of persons employed in the (data-driven) economy (EU28, 2018-2030)

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700 Thousands 600

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0 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Baseline scenario Charging Net Effect Research institutions Net Effect Para-public bodies Net Effect APIs Net Effect Exclusive agreements Net Effect

Source: Estimate by Deloitte based on Eurostat, Capgemini, and IDC. The graph depicts the estimated impacts of the different elements of the preferred Policy Package on the number of persons employed in the (data-driven) economy in the 28 EU Member States between 2018 and 2030. Thus, the dotted lines represent the individual economic value that each element of the Policy Package adds to the baseline scenario to achieve the overall impact. The shares of contributions of the individual elements can be derived from the table of assumptions (Table 22).

8.4.4 Cost savings from PSI for public authorities

At the same time governments are opening up their data, the can cut costs in other parts of government activity through the use of PSI. The gross savings are visualised below.

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Figure 79 – Impacts of the different elements of the preferred Policy Package on the cost savings from PSI for public sector bodies (EU28, 2018-2030)

350 €

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100 €

50 €

- € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Baseline Scenario Charging Net Effect Research institutions Net Effect Para-public bodies Net Effect APIs Net Effect Exclusive agreements Net Effect

Source: Estimate by Deloitte based on Eurostat, Capgemini. The graph depicts the estimated individual contributions of the elements of the Policy Package on the development of the total cost savings from PSI in the 28 EU Member States between 2018 and 2030. Thus, the dotted lines represent the individual economic value that each element of the Policy Package adds to the baseline scenario to achieve the overall impact. The shares of contributions of the individual elements can be derived from the table of assumptions (Table 22). Unlike in the section concerning the evaluation and the baseline scenario, we have not charted the total impact on the economic value of PSI per element of the Policy Package as this graph would not be understandable to outside readers.

8.4.5 Additional government revenue

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Figure 80 – Impacts of the different elements of the preferred Policy Package on the additional government revenue from PSI (EU28, 2018-2030)

200 € Billions 160 €

120 €

80 €

40 €

- € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Baseline Scenario Charging Net Effect Research institutions Net Effect Para-public bodies Net Effect APIs Net Effect Exclusive agreements Net Effect

Source: Estimate by Deloitte based on Eurostat, Capgemini. The graph depicts the estimated individual contributions of the elements of the Policy Package on the development of the additional government revenue from PSI in the 28 EU Member States between 2018 and 2030. Thus, the dotted lines represent the individual economic value that each element of the Policy Package adds to the baseline scenario to achieve the overall impact. The shares of contributions of the individual elements can be derived from the table of assumptions (Table 22). Unlike in the section concerning the evaluation and the baseline scenario, we have not charted the total impact on the economic value of PSI per element of the Policy Package as this graph would not be understandable to outside readers.

8.4.6 Costs of opening up PSI

The figure below visualises the costs of opening up PSI for all affected public sector bodies in comparison to the overall government revenue and expenditure.

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Figure 81 – Impacts of the different elements of the preferred Policy Package on the costs of opening up PSI for all affected public sector bodies compared to total government revenue and expenditure (EU28, 2018-2030)

10,0 €

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7,0 €

6,0 €

5,0 €

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3,0 €

2,0 € 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Baseline Scenario Charging Net Effect Research institutions Net Effect Para-public bodies Net Effect APIs Net Effect Exclusive agreements Net effect

Source: Estimate by Deloitte based on Eurostat, Capgemini, Deloitte (POPSIS), data gathered as part of interviews. The graph depicts the estimated individual contributions of the elements of the Policy Package to the cost reductions in the 28 EU Member States between 2018 and 2030. Thus, the dotted lines represent the individual cost reduction economic value that each element of the Policy Package adds to the baseline scenario (and previous the other elements) to achieve the overall impact. The shares of contributions of the individual elements can be derived from the table of assumptions (Table 22).

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9 Conclusions

9.1 A look into the past: impact and achievements of the PSI Directive Public sector bodies in the European Union are big producers (and consumers) of data and information. Within the framework of their public tasks, they gather, store and process vast amount of information having an enormous value for the public bodies themselves and for the society overall. In order to favour re-usability of these data, the European legislators adopted in 2003 a Directive on the Re-use of Public Sector Information (PSI)550. The purpose of this Directive was to facilitate the re-use of PSI throughout the Union by harmonising the basic conditions for making PSI available to re-users, to foster community-wide products and services based on PSI, and to avoid distortions of competition. This legislation was updated in 2013 in order to introduce a few key changes:

 The extension of the Directive to public cultural institutions (libraries, including university libraries, museums and archives);  An obligation to charge for data at the marginal cost, with a limited number of exceptions;  A right of re-use (data that are accessible should be re-usable);  Rules on exclusive agreements, making them limited in time and scope;  A reference to “machine-readable” format when data is being made available.

In this context, the object of this study was to assess both these recent changes individually and the achievements and results of the PSI legislation overall in order to define whether the Directive achieved its goals and stood the test of time. With respect to the specific changes brought in 2013, it emerged that:

550 See : Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re- use of public sector information, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:345:0090:0096:EN:PDF

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bodies charging for data was already a small percentage of the total (mainly bodies in charge of geo-spatial and business data) well before the Directive entered into play. Therefore, the Directive only helped in a limited number of cases. Nonetheless, the 2013 charging provisions efficiently contributed in further increasing the number of public sector bodies providing data at a marginal cost and below and thus contributed to creating a more re-user friendly environment in Europe.  The extension of the scope of the Directive to cultural data has been less successful than expected. Due to a limited awareness amongst the main stakeholders and to a number of barriers (such as the costs of digitisation or the uncertainties linked to IPR regimes) the impact of the legislation in terms of re-usability of data has been sub- optimal and the Directive has not brought to revolutionary changes. However, this can also be linked to the early stage of implementation of the legislation itself which is only starting to be known by cultural institutions in the Member States. Therefore, although the assessment of this change might not be positive at this stage, stakeholders agree that it is definitely too early to draw a negative balance and that the Directive may lead to further re-usability of data and to the emergence of new services in the future. However, to improve its impact on cultural institutions, the Directive should clarify a number of points and especially in terms of relation between its provisions and the IPR framework at the EU and the Member States level.  The reference to “machine-readable format” has led to an increase in the number of datasets provided in a way that facilitate stakeholders’ re-use. While there is still a debate around standards, APIs and data format in the open data community, the Directive has helped shaping this discussion and has encouraged public sector bodies to improve in this domain.

Based on the assessment of the above-mentioned specific change and on the thorough analysis of the performance of the Directive overall, this study reached a number of conclusions on the effectiveness, efficiency, relevance, coherence and added-value of the Directive. In terms of effectiveness, the analysis points out that the Directive has ensured fairer competition in the Digital Single Market, enabled the creation of new jobs and services and, to a lesser extent, enabled citizens to gain new ways of accessing knowledge. The Directive has also increased public sector’s efficiency and brought costs savings to public sector bodies. Data also suggests that the Directive has not yet reached its full potential and that a few (and sometimes new) challenges remain to be addressed. Amongst these challenges, the questions related to a) “locked data” such as data hold by research establishments or private players carrying out public tasks, b) availability of APIs for dynamic and real time data, c) presence of exclusive agreements (de facto or contractual) and d) prices of data and charging practices remain crucial. Concerning the efficiency of the Directive overall, the analysis shows that there is a positive balance between the costs and the (quantitative and qualitative) benefits of the legislation. Indeed, if on the one hand the costs for public sector bodies implementing the Directive 429

remain very limited compared to the overall public spending, economic and societal benefits are considerable and include establishment of new services, creation of new jobs and efficiency gains for the public sector overall. Therefore, the Directive is very efficient. With respect to the relevance of the Directive, this study suggests that this legislation was, and still, is relevant. The PSI Directive in fact does correspond to real stakeholders’ needs and does address key challenges such as costs of data, data format and exclusivity over the re-use of PSI. At the same time, it emerged from the analysis that the data economy is changing fast and that new trends such as the availability of much more real time information and the concentration of data in big oligopolies may affect the relevance of the Directive on the long term. For this reason, although the Directive is relevant today, actions should be taken to make it relevant for the next 10 years. The PSI Directive is overall coherent with EU and national legislation. However, the analysis pointed to a number of aspects which can be perceived by stakeholders as barriers for the exploitation of the full potential of the Directive. In particular, the analysis showed that there might be issues of compatibility between the PSI Directive and the IPR Regimes (including the Orphan Work Directive) and the Database Directive. Moreover, with the General Data Protection Regulation coming into effect in 2018, stakeholders asked for more clarification on the aspects of data protection and privacy, although no concrete issues or inconsistencies between the GDPR and the PSI Directive could be found at this stage. Finally, in terms of added value, opinions are quire unanimously positive. The analysis demonstrates that action at the local and national level could not achieve the same objectives and impact reached thanks to the PSI Directive. The establishment of an EU-wide market for public sector information and the promotion of cross-borders services and apps can only be obtained through EU level intervention. Moreover, stakeholders believe that the PSI Directive has pressured Member States into action. Therefore, also considering the positive achievements of the Directive in terms of effectiveness, policy intervention at the Member States or local level could not have achieved the same results to the same extent. The analysis of the different evaluation criteria contributes establishing a positive picture of the PSI Directive’s performance over the last few years. Although primary data was not always available, it can be safely said that the Directive achieved its objectives and played an important role in the development of the data economy in Europe. However, changes in the Directive’s provisions are needed for two main reasons:

 Although the Directive has effectively addressed a number of barriers to PSI re-use, it has not addressed all of them. Some new challenges emerged and some old challenges were not sufficiently tackled by the provisions. To further unlock the PSI potential, these problems and issues need to be solved.  The Data economy has evolved tremendously since 2013. New trends have emerged (e.g. IoT) and some of the trends that were emerging at the time (e.g. Big Data) have become the new “normal”. To stay relevant in this context, the Directive needs to evolve and adapt to the threats and opportunities that these changes have brought to the PSI market and its stakeholders.

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9.2 The way forward: the PSI Directive’s future The evaluation helped highlighting the many important achievements obtained by the Directive in the past 15 years while at the same time pointing at the present and future challenges for the PSI legislation. The issues and problems identified were the object of the second part of the study. Based on the insights from the evaluation, the impact assessment focused on four main questions which are crucial for the PSI Directive’s future:

 The problem of locked data. One of the main issues for re-users in fact remains quantity of data which is still locked (for one reason or another) and not yet available to them. In this respect, although the Directive already helped significantly, stakeholders believe that further intervention is needed. The analysis paid particular attention to the areas of research data and data held by public undertakings or collected in the framework of concession contracts. Indeed, these two domains are currently not covered by the PSI Directive but these types of data are of high value and the analysis show the considerable societal and economic benefit which would result from un-locking them.  The problem of data format and re-usability of data. In this domain, the analysis proved that there is a strong need to push for more APIs in order to foster dynamic data availability and re-use. The current rules in fact encourage the provision of data in a “machine-readable and re-usable format” but do not make compulsory real-time provision of data through application programming interfaces, which are nowadays the preferred tool for re-users. Therefore, also due to the development of the IoT economy, there are emerging needs which are currently not sufficiently addressed by the Directive.  The problem of cost of data. Even 15 years after the PSI Directive was established, evidence still suggests that price remains a barrier for data re-use as the most useful datasets are generally charged for and that even small decrease in price can lead to substantial increase in the number of services and apps developed. Hence, although the Directive already has very clear and forward-looking rules in terms of charging, it is argued further progresses could be easily made with minimum investments.  Finally, problems related to exclusive agreements emerged as a growing concern, especially from the point of view of competition law. If these practices mainly concerned cultural data digitization initiatives and other limited number of cases in the past, exclusive agreements now become more wide-spread within the context of smart cities projects for instance. Similarly to the cost of data, exclusive agreements also constitutes entry barriers for new players and a distortion of competition which should be tackled in order to increase the value and market of PSI. Although the PSI Directive already foresees rules to frame these practices, as the nature of the exclusive agreements evolved there is a need for re-assessing the relevance of the current legislative approach. The problems linked to locked data, lack of APIs, costs of data and exclusive agreements all contribute preventing the PSI Directive from reaching its potential now and will have far more important effects on the PSI Directive in the near future. To address these problems

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and make sure that the PSI legislation remains relevant and continues achieving its objectives, the European Commission disposes of both legislative and non-legislative instruments. Therefore, for each of the above-mentioned problems, this study examined what would be the impact of a number of hard and soft measures on top of a “no action” option. The purpose of the preliminary assessment was to identify the best option for each problem and consolidate them in policy packages. The policy options considered are shown in the table below.

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Problem area Non-regulatory options Regulatory options

  Limited access to Funding of initiatives, communication Abolish the current exclusion of document held by public educational and research data and awareness campaigns research establishments  Partially abolish the exclusion of 1.2(e) in order to allow the re-use of administrative data held by public research and higher education establishments as well as data held in repositories belonging to these establishments  Introduce a requirement to make available for re-use under specific provisions of the Directive of all research information resulting from publicly-funded research covered by Open Access obligation, regardless of the entity holding the data (public/private/individual).   Limited access to Issue guidance to the Member States Extending the scope of the PSI Directive to cover para-public bodies and data held by encouraging them to open up these private entities carrying out public tasks under the procurement Directive public data 2014/25/EU or on the basis of a concession bodies and entities under the undertakings and default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.) para-public bodies  Define a selection of such bodies, based on objective criteria (EU procurement legislation) and introduce a requirement to apply certain provisions of the Directive to the re-use of the data they hold (e.g. no requirement of cross- subsidies, no requirement related to the processing of requests, no requirement of free-of charge pricing  Extend the scope of the PSI Directive to cover para-public bodies and private entities (with exclusion of fully private entities) carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive

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apply.  Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use (including by entities in the utilities sectors, newly brought within the scope of the Directive).   Costs of data Communication and awareness Introduce free of charge re-use as the only rule for all documents covered by limiting re-use raising the Directive  Development of guidance and  Amend article 6 to strengthen the default rule of free of charge re-use and get recommendations rid of exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c).  Establish a list of 'open by default' datasets which, given their particularly high innovation potential, should be made available for free of charge re-use by the entities to which the Directive applies.   Limited available Funding of initiatives Amend Article 5 to impose a set of obligations on format and distribution of APIs  Communication and awareness  Amend Article 5 to create a soft obligation (e.g. as add-on to existing raising provision) or only applicable to large public sector bodies  Development of technical guidelines  Standardisation efforts   Exclusive Communication and awareness Modify article 11 to prohibit the conclusion of agreements between the public agreements raising sector bodies and private companies that may lead to 'de facto' exclusivity.  Development of guidance and  Modify article 11 of the Directive so as to introduce a procedural safeguard recommendations preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity

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The preliminary analysis of all these sub-options led to discarding some of them due to their lack of effectiveness or disproportionality and to consolidating the remaining in three packages whose economic benefits and costs have been duly assessed:

 Baseline scenario: this first package consists of a de fault “no action” option. This would mean that the European Commission would not intervene, not legislatively nor through soft measure, in any of the problem areas considered by the study. The following two policy packages are measured with respect to this baseline scenario as per the Better Regulation Guidelines.  Policy package 1 (PO1)– Lower intensity level of intervention: this policy package includes a number of actions for each of the problem areas analysed and especially: o To unlock data from research data and “para-public bodies” this package would foresee: a) extending the scope of the PSI Directive to research and educational establishments to cover administrative data and research results, focusing on the re-usability of already accessible data and b) extending the scope of the PSI Directive to cover para-public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU requiring the application of the provisions of the Directive to the data that these entities decide to make available for re-use (as was the case with all public sector bodies prior to 2013 amendment). In case re-use is allowed, all the obligations of the Directive apply. o With respect to re-usability of data, this package entails amending article 5 in order to entice public sector bodies to make dynamic data available for re- use immediately after collection via an API. o Concerning issues related to costs of data, the solution proposed by this package is to amend article 6 to limit recourse to exceptions to marginal cost charging: deleting the exception described in article 6.2(b) while specifying the eligibility of costs that can be recovered in cases covered by article 6.2(a) and 6.2(c). Furthermore, a second action would consist in defining a limited set of high-value datasets to be released as open data (charging limited to marginal cost, open license) across the EU on a basis of a Delegated Act o Finally, with respect to the competition problems related to exclusive agreement, this packages suggests to modify article 11 of the Directive (exclusive arrangements) so as to introduce a procedural safeguard preventing the conclusion of agreements between the public sector bodies and private companies with a high risk of 'de facto' exclusivity.  Policy package 2 (PO2) – Higher intensity level of intervention: this policy package addresses all problems areas identified through a number of key actions: o Concerning the problems related to locked research and “para-public” data, this policy package foresees two initiatives: a) extending the scope of the PSI Directive to research and educational establishments so as to cover administrative data and research results and to mandate educational and research establishments and research funding bodies to implement open access policies and b) extending the scope of the PSI Directive to cover para-

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public bodies and private entities carrying out public tasks under the procurement Directive 2014/25/EU or on the basis of a concession bodies and entities under the default rules of the PSI Directive (marginal cost charging, transparency, data formats, processing of requests, etc.). o Concerning the issues related to re-usability of data and availability of APIs, this packages entails amending article 5 in order to create an obligation to make dynamic data available for re-use immediately after collection via an API. o With respect to barriers for re-use linked to cost of data, this packages foresee the introduction of free of charge re-use as the only rule for all documents covered by the Directive. o Finally, with respect to the issues of exclusive agreements, the package entails modifying article 11 of the Directive (exclusive arrangements) to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to 'de facto' exclusivity.

The qualitative and quantitative assessment of these policy packages led to the conclusions that the lower intensity level of intervention (PO1) should be preferred for two main reasons. First, this policy package (PO1) achieves the greatest impact with the minimum amount of costs and burden for stakeholders. Indeed, although a higher intensity of intervention (PO2) would lead to even higher impact on the PSI market, job creation and cost savings, the lower level of intervention policy package already achieves considerable results with a more limited burden, impact and costs for the stakeholders involved. With respect to the baseline scenario on the other hand, the PO1 is far more effective and efficient in reaching the desired goals. In this respect, the relation between cost and benefits is better for PO1 than for both the baseline and PO2 and this also suggests that PO1 would be the most proportionate approach. Furthermore, the results of the Multi-Criteria Analysis (MCA) also points at PO1 as the preferred package from a coherence perspective. A second reason resides in the political feasibility of the policy package 1 with respect to policy package 2. Indeed, the actions included in the lower intensity level of intervention policy package are more widely accepted by stakeholders and came across as more politically feasible from the overall analysis. Compared to the baseline scenario, PO1 is also preferred by stakeholders who generally believe non-legislative measures or no action would not be sufficient to address the problems analysed by this study. Therefore, on top of quantitative reasons, qualitative evidence suggest that lower level of intervention should be preferred. To conclude, in order to effectively address the challenges examined in this evaluation and the problem areas emerging from the impact assessment, the European Commission should opt for a lower intensity legislative intervention thus putting forward a limited set of changes which could already greatly benefit the data economy without imposing unnecessary or disproportionate burden to the affected stakeholders.

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Annex A – Problem trees relating to specific areas

This section presents our current understanding of the existing and future problems under the PSI Directive, as well as their root causes and effects / impacts. This concerns the following specific problem areas:

 Research data;  Data held by para-public bodies;  Charging provisions; and  APIs and dynamic data. This understanding, taking into account how different stakeholder groups are affected, is presented below by means of problem trees.

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Research data Figure 82 - Problem tree concerning research data

Source: Deloitte

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Data held by para-public bodies Figure 83 - Problem tree concerning data held by para-public bodies

Source: Deloitte

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Charging provisions Figure 84 - Problem tree concerning charging provisions

Source: Deloitte

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APIs and dynamic data Figure 85 - Problem tree concerning APIs and dynamic data

Source: Deloitte 441

Exclusive agreements Figure 86 - Problem tree concerning exclusive agreements

Source: Deloitte

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Annex B – Sources and equations for the quantification

This annex contains the list of studies and secondary sources used fort the economic analysis.

(1) Dekkers, Max/Polman, Femke/Te Velde, Robbin/De Vries, Marc. (2006, June). MEPSIR Measuring European Public Sector Information Resources. Retrieved from http://ec.europa.eu/newsroom/document.cfm?doc_id=1197

(2) Deloitte/Tech24. (2011, October). POPSIS Pricing Of Public Sector Information Study. Retrieved from https://ec.europa.eu/digital-single-market/en/news/pricing-public- sector-information-study-popsis-models-supply-and-charging-public-sector

(3) Directorate General for the Information Society (2000, October 30). Commercial Exploitation of Europe's Public Sector Information - Final Report. Retrieved from https://ec.europa.eu/digital-single-market/en/news/commercial-exploitation- europes-public-sector-information-pira-study-full-report

(4) European Commission. (2015). Creating value through open data. Retrieved from https://www.europeandataportal.eu/sites/default/files/edp_creating_value_through_ open_data_0.pdf

(5) European Commission. (2017). Re-using Open Data. A study on companies transforming Open Data into economic & societal value. Retrieved from https://www.europeandataportal.eu/sites/default/files/re-using_open_data.pdf

(6) European Commission. (2017, February 01). European Data Market. SMART 2013/0063. Final Report. Retrieved from https://a2528ba5-a-c3c32646-s- sites.googlegroups.com/a/open- evidence.com/download/repository/SMART20130063_Final%20Report_030417_2.pdf ?attachauth=ANoY7cqfQr79x6OowAjJUkJgS- qZyc3dkemSFqn5LG_gZHt8nIJmQVPrRyUo5b4K17K5tCRBUFNSUo- xow8cw4_X5AhY_gOFF7LdqSlYvCG_HxdAVeHeEJYSA63vJLDnDTgdn7MZNkp8l6y6eGc UY-uNVcb1J9k1cFYoV- zbNauRXFw7fxoq8kKze10uSqUNhwUf6cpI6xxD6_xwdLqpvcMEvwhoCmDcL5F8NTz1UZ mR2o4l2sV5kl6VfMzWyOMcvL90EtxlXCsG&attredirects=0

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(7) Henninger, Maureen. (2015). The Value and Challenges of Public Sector Information. Retrieved from https://www.researchgate.net/publication/270015700_The_value_and_challenges_of _public_sector_information

(8) McKinsey & Company. (2013, October). Open data: Unlocking innovation and performance with liquid information. Retrieved from https://www.mckinsey.com/business-functions/digital-mckinsey/our-insights/open- data-unlocking-innovation-and-performance-with-liquid-information

(9) Meijueiro, Luis. (2016, February). European Public Sector Information Plattform. The Best of 2015. Retrieved from https://www.europeandataportal.eu/sites/default/files/2016_the_best_of_2015.pdf

(10) NDP Consulting. Pham, Nam D. (2011, June). The Economic Benefits of Commercial GPS Use in the U.S. and the Costs of Potential Disruption. Retrieved from http://www.gpsalliance.org/docs/GPS_Report_June_21_2011.pdf

(11) Newbery, David/Bently, Lionel/Pollock, Rufus. (2008, February 26). Models of Public Sector Information Provision via Trading Funds. Retrieved from https://joinup.ec.europa.eu/sites/default/files/document/2014-12/media2561.pdf

(12) OECD. (2017). The Size and Sectoral Distribution of State - Owned Enterprises. Retrieved from http://www.keepeek.com/Digital-Asset- Management/oecd/governance/the-size-and-sectoral-distribution-of-state-owned- enterprises_9789264280663-en#.WjuS4maWzcs

(13) Office of Fair Trading. (2006, December). The commercial use of public information (CUPI). Retrieved from https://joinup.ec.europa.eu/sites/default/files/document/2014-12/media2562.pdf

(14) PricewaterhouseCoopers. (2015, April). State-Owned Enterprises Catalysts for public value creation?. Retrieved from https://www.pwc.com/gr/en/publications/assets/state-owned-enterprises-catalysts- for-public-value-creation.pdf

(15) Shakespeare, Stephan. (2013, May). Shakespeare review: An Independent Review of Public Sector Information. Retrieved from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198 752/13-744-shakespeare-review-of-public-sector-information.pdf

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(16) Sunlight Foundation. Júlia Keserű /James Kin-sing Chan. (2015). The social impact of Open Data. Retrieved from http://assets.sunlightfoundation.com.s3.amazonaws.com/policy/SocialImpactofOpen Data.pdf

(17) The World Bank. Scott, Andrew. (2014, June 25). Open Data for Economic Growth. Retrieved from http://www.worldbank.org/content/dam/Worldbank/document/Open-Data-for- Economic-Growth.pdf

(18) The World Wide Web Foundation. (2016, April). Open Data Barometer – Third edition. Retrieved from http://opendatabarometer.org/doc/3rdEdition/ODB-3rdEdition- GlobalReport.pdf

(19) Vickery, Graham. (2011). Review of recent studies on PSI re-use and related market developments. Retrieved from http://ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=1093

(20) Wong, Kelvin Ka Yin. (2015, April). Economic Value of 3D Geographic Information. Retrieved from https://www.lantmateriet.se/globalassets/om-lantmateriet/var- samverkan-med-andra/3d- projektet/150413_economic_benefits_of_3d_geographic_information.pdf

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Approach for estimate of costs The logical link between the cost to open PSI and the value of the public procurement market can be expressed through the following general equation:

푇표푡푎푙 푇표푡푎푙 푇표푡푎푙 퐶표푠푡푈푠푒푟푠 < 퐶표푠푡퐻표푙푑푒푟푠 ≪ 푉푎푙푢푒푃푢푏푙푖푐 푃푟표푐푢푟푒푚푒푛푡

Each of these types of costs consists, however, of different elements – mainly considering the number of users and holders affected, as well as their respective costs (mainly charges). Thus, the more detailed equation is the following.

퐶ℎ푎푟𝑔푒푠 퐶표푠푡퐶표푚푝푙푖푎푛푐푒 푁푢푚푏푒푟 ∗ ( ) < 푁푢푚푏푒푟 ∗ ( ) 푈푠푒푟푠 푈푠푒푟 퐻표푙푑푒푟푠 퐻표푙푑푒푟

Whereas charges under the PSI Directive range from zero to the marginal costs incurred by a public body to share PSI, the compliance costs encompass costs related to the technical implementation of the necessary infrastructure, as well as process-related costs to share PSI (i.e. maintenance of the system, servicing of requests for PSI, preparation of data, etc.). This is usually referred to as capital expenditures (CAPEX) and operational expenditures (OPEX). Whereas CAPEX are generally incurred once at the start of an investment period, OPEX is incurred on an annual basis throughout the entire investment period:

퐶표푠푡퐶표푚푝푙푖푎푛푐푒 = 퐶퐴푃퐸푋퐻표푙푑푒푟 + 푂푃퐸푋퐻표푙푑푒푟 ∗ 푁푢푚푏푒푟푌푒푎푟푠

Capital expenditures refer to the one-off costs of purchasing the relevant technical solutions and setting them up (i.e. making them operational). Operational expenditures usually refer to on-going technical maintenance costs (incl. e.g. licensing fees and fees for contracting out respective services), as well as staff costs. Staff costs are usually made up of the number of full-time equivalents (FTEs) necessary to run the respective processes, as well as their salary.

푂푃퐸푋퐻표푙푑푒푟 = 퐶표푠푡푀푎푖푛푡푒푛푎푛푐푒 + 푁푢푚푏푒푟퐹푇퐸푠 ∗ 푆푎푙푎푟푦퐹푇퐸

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Thus, the overall equation to estimate the current cost for PSI can be expressed by means of the following formula:

퐶ℎ푎푟𝑔푒푠 퐶퐴푃퐸푋 + 퐶표푠푡 + 푁푢푚푏푒푟 ∗ 푆푎푙푎푟푦 ∗ 푁푢푚푏푒푟 푁푢푚푏푒푟 ∗ ( ) < 푁푢푚푏푒푟 ∗ ( 퐻표푙푑푒푟 푀푎푖푛푡푒푛푎푛푐푒 퐹푇퐸푠 퐹푇퐸 푌푒푎푟푠) 푈푠푒푟푠 푈푠푒푟 퐻표푙푑푒푟푠 퐻표푙푑푒푟

In line with the discussion with the European Commission, several specific elements need to be considered to adapt this general equation to more specific contexts to satisfy the given data needs. For instance, different types of public bodies concerned such as cultural institutions, research institutes, and para-public bodies, have an impact on the specific data needed to estimate the costs for PSI as the number of respective data holders and users changes. The same is valid for specific technical means to open up PSI, e.g. through APIs which are of special importance regarding dynamic data. The provision of non-dynamic data, for instance, is associated with different costs compared to the provision of dynamic data as the technical means and manual input necessary differ between both. Moreover, it is crucial to distinguish between the costs for the domestic provision of PSI and the provision across borders as the difference between domestic and cross-border services is crucial for this assignment.

The following section contains a mapping of the European Commission’s data needs towards analytical criteria Approach for extrapolations Statistical data for which it can be reasonably assumed that it follows linear growth patterns, e.g. population statistics, will be projected into the future (until 2030) by means of the Compound Annual Growth Rate (CAGR), i.e. the year-over-year growth rate. The CAGR will be used for the following types of statistics:

 Number of contracting authorities;  Number of cultural institutions;  Number of (para-) public bodies;  Number of research institutions;  Number of businesses overall;  Number of citizens overall; and  Gross Domestic Product (GDP).

The CAGR is generally calculated through the following formula:

푉(푡 ) 1 푛 푡푛−푡 퐶퐴퐺푅 (푡0, 푡푛) = ( ) 0 − 1 푉(푡0)

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The formula contains the following elements:

 V(t0) represents the start value of the time period for which data is available;

 V(tn) represents the end value of the time period for which data is available; and

 tn-t0 represents the number of years the time period covers.

The CAGR is then used to project values from today into the future based on growth rates from the past. This is done by means of the following general formula:

푛 푉(푡푛) = 푉(푡0) × (1 + 퐶퐴퐺푅)

Based on this operation, annual values will be estimated until 2030. While for some types of data, it is reasonable to assume that it follows linear growth patterns (e.g. statistical data on the number of businesses) the openness of PSI is not expected to grow in linear fashion. Instead, it is more reasonable to assume that the matching rate grows in the form of an S-curve over time. An illustrative example is provided in the figure below.

Figure 87 - Illustrative S-curve development of the efficiency of investments into PSI openness

Source: Deloitte As can be seen in the graph above, initial investments in the technical systems to open PSI are expected to be very efficient. This means that with each marginal investment, the marginal growth of the openness is expected to increase. Therefore, the curve is

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increasingly steep over the first couple of years. However, at some point, the investments start to become increasingly inefficient. This means that marginal growth in the degree of PSI openness start to decline to a point at which Member States’ cost for additional, marginal growth outweigh its benefits, e.g. because some types of datasets are less frequently requested than others and more challenging to maintain (static vs. dynamic data). It is important to note that the growth of the openness depends on the specific starting point of each Member State:

 Member States that already have a comparatively high degree of openness are expected to invest less in their systems which, thus, leads to lower growth rates over time; and  Member States that have a comparatively low degree of openness today are expected to invest more in their systems which, thus, leads to higher growth rates over time. In practice, this means that for Member States that already have a comparatively high degree of openness, the growth curve will much less resemble an S-form than for Member States that have higher growth rates over time. The S-curve for the development of the matching rate can be modelled with a logistic function. The general formula used for the logistic function is the following. 푟−푡 푃0 ∗ 푒 푃(푡) = 푟−푡 1 + 푃0(푒 − 1)/푃푀퐴푋 The formula contains the following elements:

 P represents the matching rate at a given time t;

 P0 represents the matching rate today;

 PMAX represents the matching rate that can reasonably be achieved until 2030; and  r represents the parameter by means of which the matching rate is expected to increase annually; and  e is the mathematical that is the base for the natural logarithm (‘Euler’s number’). As already indicated above, the growth of the degree of openness depends on current starting point of each individual Member State. In terms of modelling growth rates, this means that standard assumptions on the growth of the current degree of openness of each Member State cannot simply be put on top of the status quo. The growth rate much rather needs to be adjusted for the growth potential of each Member State, i.e. the current degree of openness subtracted from the maximum degree of openness realistically possible. If the degree of openness of a Member State currently is 75% and the maximum degree of openness is 95%, then the growth potential is 20%. This means that if a Member State realises 100% of its growth potential, then the matching rate will increase by a value of 20%. This will be defined for each Member State individually. In practical terms for the model, this means that the degree of openness is not multiplied with its growth rate, year over year, but much rather that the annual value of the growth

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potential – standardised between 1% and 100% - is added the baseline current matching rate for each year until 2030. If the current matching rate is already as high as or higher than the maximum value the degree of openness is expected to achieve on average, then no further increase or decrease of the matching rate is expected.

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Annex C – Questionnaires for legal data collection

A key component to the legal research to be conducted at national level is a legal research questionnaire, designed to ensure consistent reporting on the relevant legal issues in the Member States examined. The questionnaire will be completed in respect of each selected Member State by a member of Spark’s team of legal experts, on the basis of legislation, case law, enforcement decisions, etc., to the extent to which they are available to the study team.

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1. Introductory questions These questions are designed to set the scene, and show the manner in which the PSI Directive and its modifications were implemented, showing particularly the driving force behind the implementation at national level. The answers to these questions form the prism through which the national implementation is viewed.

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (E.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc.). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc.?

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2. Overlap with other relevant EU law (INSPIRE Directive, Database Directive, Copyright and related rights Directive and Data Protection rules) These questions are designed to identify any differences in the implementation of Directives in overlapping legal frameworks, which might impact upon the optimal level of re-use of PSI (in a positive or negative manner). For example, rules limiting the exercise of IP rights (such as copyright or database rights) may lead to an increase in the re-usability of PSI. I - INSPIRE Directive

Q3. Please describe where your national legal frameworks implementing the INSPIRE Directive and the PSI Directive create synergies in terms of access / accessibility / reuse of public sector data? In particular, with regard to the scope of the rules: do the national rules implementing the PSI Directive apply to data covered by the national rules implementing the INSPIRE Directive?

 Less sharing among public bodies with respect to spatial data;

 Issues with availability of spatial data for re-use or with the conditions for re-use;

 Less likelihood of data being available in a usable format.

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II – IPR / Copyright and related rights Directive and Database Directive

Q5. Are there any national rules (or case law) limiting the exercise of copyright protection in order to ensure public access to information (e.g. cultural data), or in order to preserve competition etc.? Please describe (if so).

Q6. Are there any national rules (or case law) limiting the exercise of database rights in order to ensure public access to information (held by the public or by the private sector), or in order to preserve competition etc.? Please describe (if so).

Q7. Are there any national rules (or case law) limiting the exercise of intellectual property rights in order to ensure public access and re-use to scientific information (e.g. scientific publications, research data)? Please describe (if so).

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III - Data Protection Rules

Q9. Are there specific provisions in national data protection law in relation to PSI that contains personal data? Or inversely, are there provisions in national PSI legislation that address the possibility of the PSI containing personal data (other than by saying that data protection laws must be adhered to)?

Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is made available for re-use

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The obligation to anonymise or pseudonymise PSI containing personal data before making it available for re-use (possibly including methodologies or procedures for pseudonymisation or anonymization)

The obligation to conduct a data protection impact assessment or a similar risk assessment before making PSI containing personal data available for re-use

The obligation to include data protection provisions in licenses for re- use of PSI containing personal data (e.g. including restrictions on the purposes of use of the PSI to ensure compatibility with the original purposes)

3. Specific issues arising from implementation of PSI Directive as amended in 2013 I - Scope of the Directive

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis?

Documents for which citizens or companies need to prove a particular interest to obtain access

Documents relating to national security, statistical confidentiality or commercial confidentiality

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Documents the supply of which is an activity falling outside the public task

Documents containing personal data

Documents held by educational and research establishments (other than university libraries) and documents held by cultural establishments other than libraries, museums and archives

Documents held by public service broadcasters and their subsidiaries

Documents for which 3rd parties hold intellectual property rights

II - Right of Re-use

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

III - Cultural Heritage Institutions

Q13. Cultural Heritage Institutions allowing re-use (Article 3(2))

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Article 3(2) sets out the principle that documents for which libraries (including university libraries), museums and archives hold intellectual property rights shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in the directive “where the re-use of such documents is allowed”. Is there any specific framework or rules at national level setting out where the re-use of such documents is allowed? Or is there any guidance from the Ministry in charge of implementing the PSI Directive, or from the Ministry responsible for culture or education? Alternatively, is there any guidance published by the CHI themselves, such as the national archives?

Q14. Charging by Cultural Heritage Institutions (Article 6(4)) (a) Does national law (or case law or guidance) clarify how the concept of “reasonable rate of return” should be applied by cultural heritage institutions?

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Is there a national register? How is the making transparent and public of such arrangements controlled, and by whom? Does national law (or guidance) provide any clarity regarding what “reviewing” the duration of exclusivity (under Article 11(2a)) actually entails in practice?

IV - Formats and practical arrangements These questions concern practical issues impacting upon the accessibility of public sector information. The clearer or better implemented these arrangements are, the more likely public sector information will be accessible, and ultimately re-usable.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1))

“disproportionate effort” (Art 5(2))

Q17. Dynamic data / APIs

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Are there any requirements on public bodies or bodies governed by public law (or some of these bodies) to do the following, in respect of public sector information (or some of this information)?

(a) published online in their original, unmodified form to ensure timely release

(b) published and updated frequently at the highest possible level of granularity to ensure completeness and accuracy

(c) published and maintained at a stable location, preferably on the highest organisational level within the administration, to ensure easy access and long-term availability

(d) published in machine-readable and open formats (CSV, JSON, XML, RDF, etc.) to enhance accessibility

(e) described in rich metadata formats and classified according to standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability

(f) accessible as data dumps (massive outputs of data) as well as through application programming inter faces (APIs) to facilitate automatic processing

(g) accompanied by explanatory documents on the metadata and controlled vocabularies used, to promote the interoperability

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of databases

(h) subject to regular feedback from re-users (public consultations, comments box, blogs, automated reporting, etc.) to maintain quality over time and promote public involvement

Q18. Practical arrangements (Art 9)

Article 9 of the Directive obliges Member States to certain practical arrangements. Have such arrangements been made in practice (beyond mere transposition of Article 9 into law)?

V – Charging

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules?

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Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2) (a) of the PSI Directive?

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2) (b)? (i.e. to which entities it applies and how).

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

VI – Transparency and Legal Certainty These questions concern transparency and legal certainty. How the issues are dealt with at national level may impact on the ability to access and re-use data (or access and re-use them in a timely manner), and on the fairness (or perceived fairness) of the system at national level.

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on the public bodies?

VII – Final questions

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

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Q28. De facto exclusivity – have any issues been noted in your Member State (via case law or academic discussion, etc.) regarding de facto exclusivity? I.e. where there is no explicit agreement in place granting exclusive rights, but in practice one entity exclusively re-uses the data concerned?

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Annex D – Outcome of the legal analysis in the Member States

This annex contains the outcome of the legal analysis for each of the 10 Member States falling in the scope of the assignment.

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Estonia Country: Estonia Author: National expert for Estonia (Spark Legal Network) Date: 20 December 2017

In Estonia, upon proposal of a new EU legislation or non-legislative EU proposal, the Estonian government first adopts a Government Position. Such a Position introduces the objective of the proposal, its effect on the national legal system, on the budget, etc. The 2003 PSI Directive entered into force with the first Public Information Act (Avaliku teabe seadus) in Estonia (only available in Estonian).551 Since then, there have been two Acts amending the Public Information Act (in 2012552 and in 2015553). The amended PSI Directive has been implemented into the Public Information Act’s current version.554

551 Public Information Act: https://www.riigiteataja.ee/akt/26643. 552 Available only in Estonian: https://www.riigiteataja.ee/akt/119122012002. 553 Available only in Estonian: https://www.riigiteataja.ee/akt/106012016001. 554 Public Information Act of the Republic of Estonia. Available in English at: https://www.riigiteataja.ee/en/eli/518012016001/consolide.

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The national position on modifications to the PSI Directive was adopted by the government in January 2012 (only available in Estonian).555 For the 2013 modifications, several steps were taken:  In order to transpose Directive 2013/37/EU, changes were made to the Public Information Act,556 introducing the following new provisions (i.e. completely new provisions based on the 2013 amendments that did not exist in the previous Act): o paragraph 3:1 sections 1,1 3 – 9; o paragraph 14: section 2;1 o paragraph 28: point 312 of section 1; o paragraph 29: sections 3 -6; o amending the wording of paragraph 2: point 2 of section 2; o paragraph 6; o paragraph 8: section 3; and o paragraph 25: sections 5 and 6. Furthermore:  National Library of Estonia Act (Eesti Rahvusraamatukogu seadus)557 paragraph 6 was complemented with section 1;1  Public Libraries Act (Rahvaraamatukogu seadus)558 paragraph 15 was complemented with section 2;2  Archives Act (Arhiiviseadus)559 paragraph 10 was complemented with section 1;1 and  the wording of paragraph 16, section 3 of the Museums Act560 was amended.

555 Estonian Government’s national position on the modifications to the PSI Directive. Available at: http://eelnoud.valitsus.ee/main#gtPIrQrz. 556 Ibid. 557 National Library of Estonia Act: https://www.riigiteataja.ee/en/eli/504032016003/consolide. 558 Public Libraries Act: https://www.riigiteataja.ee/en/eli/507032016003/consolide. 559 Archive’s Act: https://www.riigiteataja.ee/en/eli/504032016002/consolide.

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There are national guidelines by the Republic of Estonia Information System Authority (in Estonian) for the implementation of the (revised) PSI Directive in Estonia.561 There are also the general guidelines issued by the Data Protection Inspectorate of the Republic of Estonia for implementing the Public Information Act.562 Estonia strongly promotes the access and re-use of data on a large scale. Estonia functions on the principle of once-only, stemming from the Public Information Act – by and large, this means that the government should not ask for data the citizen has already passed on to the government, forcing public sector institutions to communicate with each other (be interoperable) and share the data. In Estonia, this is done via X-Road – the national data exchange layer.563 There is an open data portal which provides a single point of access for the general public to unrestricted public sector data with the permission to re-use and redistribute this data for both commercial and non-commercial purposes.564 Estonia is a strong protagonist in permeating cross-border intra-EU data flows, seeing data as the fifth freedom of the EU and lobbying for removal of any unjustified data localisation restrictions.565

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc.?

560 Museums Act: https://www.riigiteataja.ee/en/eli/509032016002/consolide. 561 The updated 2016 version can be found here (in Estonian): https://www.ria.ee/public/Arhitektuur/Avaandmete_loomise_juhend.pdf. 562 Available only in Estonian: http://www.aki.ee/sites/www.aki.ee/files/elfinder/article_files/AvTSuldjuhend.pdf (created in 2010, last modified in 2016). 563 Read more about X-Road: https://e-estonia.com/solutions/interoperability-services/x-road/. 564 Governed by the Ministry of Economic Affairs and Communications, see: https://opendata.riik.ee/en; see also: https://opendata.riik.ee/en/kkk. 565 See the national vision paper on the Free Movement of Data: https://www.eu2017.ee/sites/default/files/inline-files/EU2017_FMD_visionpaper.pdf.

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The Ministry of Justice566 is responsible for the implementation in the national legal order, with support from the Ministry of Economic Affairs and Communications.567 The initial government position was drafted by the Ministry of Economic Affairs and Communications. The implementing agencies, in addition to the two abovementioned, are the Estonian Data Protection Inspectorate568 (the supervising agency of the Public Information Act since 2001) and the Information System Authority569 (coordinates the development and administration of the state’s information system, organises activities related to information security, and handles security incidents that have occurred in the Estonian computer networks).

566 Website of the Ministry of Justice: https://www.just.ee/en. 567 Website of the Ministry of Economic Affairs and Communications: https://www.mkm.ee/en. 568 Website of the Data Protection Inspectorate: http://www.aki.ee/en. 569 Website of the Information Systems Authority: https://www.ria.ee/en/.

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The INSPIRE Directive was implemented in the national legislation with the Spatial Data Act (Ruumiandmete seadus).570 The latter is in complete synergy with the Public Information Act of Estonia, which is the main legal act implementing the PSI Directive. The Spatial Data Act only considers spatial data. The Public Information Act571 lays down the framework for access, accessibility and re-use of public data that applies to access, accessibility, use and re-use of all types of public information (§1-§2). The Spatial Data Act provides that the Public Information Act concerning databases applies to databases containing spatial data and the maintenance thereof with the specifications provided for in this Act (§1 (3)). All spatial data is stored in spatial data databases (in Estonia, all data is stored in databases, i.e. all public data is stored in databases). Therefore, the Public Information Act applies to all data covered by the Spatial Data Act, as this is public information and the Public Information Act covers all types of public information. In addition, the Public Information Act lays down that open data of databases specified in the given Act, shall be made accessible through the Estonian information gateway.572

Q4. Have any issues arisen with regard to the implementation of the INSPIRE Directive in relation to the national legal framework implementing the PSI Directive in your Member State, which may lead to:  Less sharing among public bodies with respect to spatial data;  Issues with availability of spatial data for re-use or with the conditions for re-use;

570 Spatial Data Act, available in English at: https://www.riigiteataja.ee/en/eli/523032017002/consolide. 571 Public Information Act: https://www.riigiteataja.ee/en/eli/518012016001/consolide, see Chapter 1 of the Act. 572 The Estonian information gateway is a website allowing access to public information related to the fields of activities of holders of information and the public services provided by them, and allowing access to public electronic services and to reusable information, see more at: http://www.eesti.ee.

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 Less likelihood of data being available in a usable format.

No issues have been identified.

There are no rules limiting the exercises of copyright protection in order to ensure public access to information or in order to preserve competition. Copyrighted content has the right to be protected; however, as with any copyrighted content, it can be licensed. The following is laid down for the protection of copyright: § 31 (3) of the Public Information Act specifies that upon providing information for public use, inter alia, protection of copyrights, and protection of business secrets and other restricted information must be ensured. Under (9) of the same §, it is specified that a holder of information may provide information for public use without conditions or if they impose conditions for the public use they can do it through a licence (in accordance with the Copyright Act). The licence should not unnecessarily restrict possibilities for re-use and shall not restrict competition. Additionally, according to § 4(3) of the same Act, upon granting access to information, the inviolability of the protection of copyright shall be ensured.

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No, there are no national rules limiting the exercise of database rights in order to ensure public access to information or in order to preserve competition. § 4 (42) of the Public Information Act specifies that conditions for granting access to public information should not be unnecessarily restrictive or detrimental to competition.573 Furthermore, there is no case law on this.

No.

573 Public Information Act: https://www.riigiteataja.ee/en/eli/518012016001/consolide.

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Pursuant to Estonian law, the higher education institutions that can be regarded as legal persons in public law must provide access and re-use to data concerning only the performance of their duties. This data could be recorded and documented in any manner and on any medium, and obtained or created upon performance of public duties provided by law or legislation issued on the basis thereof. § 28 of the Public Information Act lays down the types of information that need to be disclosed, e.g. information concerning public procurements; draft concepts, development plans, programmes and other projects of general importance; statues; salaries of officials. There are 6 higher education institutions in Estonia which are regarded as legal persons in public law. The Public Information Act lays down that holders of information include legal persons in public law (§ 5 (1) 2)), and (§ 5 (2)) that the obligations of holders of information extend to legal persons in private law and natural persons if the persons perform public duties pursuant to law, administrative legislation or contracts, including the provision of educational services – with regard to information concerning the performance of their duties.

§ 3.7 of the Estonian Public Information Act states that the public re-use of information, which contains personal data, may be restricted if providing it for public use would significantly breach the “inviolability of private life of the person”. § 3(8) of the Act adds that if the re-use of information is considered to breach the inviolability of private life, either such information shall not be provided for public use, or it shall be provided in a way that does not breach the inviolability of private life or only the part which does not breach the inviolability of private life will be provided for public use. There are no specific provisions in national data protection law in relation to PSI that contains personal data.

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Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is No, there are no guidelines because the Public Information Act does made available for re-use not restrict making information containing personal data available for re-use, provided it does not significantly breach the inviolability of private life (§ 3(7))1. The obligation to anonymise or pseudonymise PSI containing personal Yes, guidelines issued by the Estonian Information System Authority data before making it available for re-use (possibly including on the implementation of the (revised) PSI Directive in Estonia (page methodologies or procedures for pseudonymisation or 7-8) explain that information must always be anonymised when there anonymisation) is a possibility that such data may breach the inviolability of private life, unless legitimate interests prevails over that right. Anonymisation is explained as deleting the identity of an individual from all public information that is made available for re-use. This means that in practice it must be impossible to identify an individual on the basis of public information made available for re-use from several different sources. Furthermore, § 3(8) of the Public Information Act allows for the re-use of information containing personal data which is considered to breach the inviolability of private life if it is provided in a way that does not significantly breach the inviolability of private life. The obligation to conduct a data protection impact assessment or a § 3(3) of the Public Information Act requires holders of information to

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similar risk assessment before making PSI containing personal data assess the need to establish restrictions on the public use of available for re-use information. Such restrictions may be necessary to guarantee the inviolability of the private life of persons, protection of copyrights, protection of national security, and protection of business secrets and other restricted information. This is further explained in the Estonian Data Protection Inspectorate (EDPI) general guidance on the Public Information Act (mentioned above, available only in Estonian), Chapter 8.574 Before providing information for re-use, the holder of public information must conduct an assessment on whether the inviolability of private life of a person would be breached by making it available for re-use. This includes checking the legal basis for disclosing any information containing personal data. The assessment should also take into account the principles of minimalism and data quality (set out in § 6(3) and § 6(5) Personal Data Protection Act575 respectively). Information which is out of date or incorrect should not be kept available for re-use. The obligation to include data protection provisions in licenses for re- There is no explicit obligation to include data protection provisions in use of PSI containing personal data (e.g. including restrictions on the licenses for re-use of PSI containing personal data. purposes of use of the PSI to ensure compatibility with the original However, the EDPI general guidance on the Public Information Act purposes) states that together with an impact assessment, the holder of information should also review its privacy policy and whether it takes

574 http://www.aki.ee/sites/www.aki.ee/files/elfinder/article_files/AvTSuldjuhend.pdf. 575 https://www.riigiteataja.ee/en/eli/ee/512112013011/consolide/current.

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into account making information that is machine-readable available.576 The privacy policy should also include a reference to the right of data subjects to obtain information and personal data concerning them (§ 19 Personal Data Protection Act) as well as state clearly that the rights of data subjects outlined in § 17-21 of the Personal Data Protection Act also apply to personal data which is being re-used. The requirement for a privacy policy stems from § 28(1)31 of the Public Information Act, according to which a holder of public information is required to disclose the purpose, scope and method of processing personal data, the communication of personal data to third persons, including other agencies, and the making personal data available to the public, and the right of and procedure for a person to examine data concerning themselves.

576EDPI General guidance on the Public Information Act, available only in Estonian at: http://www.aki.ee/sites/www.aki.ee/files/elfinder/article_files/AvTSuldjuhend.pdf. 577 Public Information Act: https://www.riigiteataja.ee/en/eli/518012016001/consolide.

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Information in respect of which restriction on access is established by law or to which access is restricted pursuant to the procedure established by law, including information to which access is granted pursuant to law only upon existence of legitimate interest or in respect of which special conditions of, procedure for and methods of access are established by law, is not for public use. Documents relating to national security, statistical confidentiality or Yes, the Public Information Act §3(3) lays down: commercial confidentiality Upon providing information for public use, inter alia, protection of national security must be ensured. Before providing information for public use, the holder of information shall assess the need to establish restrictions on the public use of the information. In any case, pursuant to §4(4),2 the conditions for access shall not be unnecessarily restrictive or detrimental to competition, i.e. re-use and access to documents which would be detrimental to national security, commercial confidentiality. However, information concerning generalised statistical data is subject to disclosure pursuant to §28 of the same Act. Documents the supply of which is an activity falling outside the public Yes, § 3 of the Public Information Act specifies which information is task not for public use: (5) Information in respect of which restriction on access is established by law or to which access is restricted pursuant to the procedure established by law, including information to which access is granted pursuant to law only upon existence of legitimate interest or in respect of which special conditions of, procedure for and methods of

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access are established by law, is not for public use. Therefore, the access and re-use of documents containing such information is excluded. Documents containing personal data Yes, the Public Information Act §3(3) lays down: Upon providing information for public use, inter alia, the inviolability of the private life of persons must be ensured. Before providing information for public use, the holder of information shall assess the need to establish restrictions on the public use of the information. Therefore, access and re-use containing such information is excluded. Furthermore, under the same Article ((7)), if information disclosed pursuant to law contains personal data, the public use of such information may be restricted if providing such information for public use would significantly breach the inviolability of the private life of the person. In addition, under (8), if providing information, which is disclosed pursuant to law and contains personal data for public use breaches the inviolability of the private life of the person, such information shall not be provided for public use or only such part of the information shall be provided for public use which does not significantly breach the inviolability of the private life of the person or the information shall be provided for public use in a way which does not significantly breach the inviolability of the private life of the person. However, under §4(5) every person has the right to contest a restriction on access to information if such restriction violates the 479

rights or freedoms of the person. Documents held by educational and research establishments (other Yes, but only in so far as the performance of their duties is concerned. than university libraries) and documents held by cultural It is mentioned in §28 (1) (18) that a holder of information is required establishments other than libraries, museums and archives to disclose research or analyses ordered by the State or local government agencies. The Public Information Act lays down that holders of information include legal persons in public law (§5 (1) 2)), and (§5(2)) that the obligations of holders of information extend to legal persons in private law and natural persons if the persons perform public duties pursuant to law, administrative legislation or contracts, including the provision of educational services – with regard to information concerning the performance of their duties. § 28 of the Public Information Act list the types of information (see also question 8 above). Documents held by public service broadcasters and their subsidiaries No. Documents for which 3rd parties hold intellectual property rights Yes, unless a license for access or re-use is provided. Public Information Act §3(3): upon granting access to information, the inviolability of protection of copyright shall be ensured (§4 (3)).

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

§ 28(1)(31) of the Public Information Act, read in conjunction with §31 implies that all public information, access to which and the “public use” of which is not restricted is re-usable; thus all public sector information that is not restricted from being provided for public use is re-usable.

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With Article §28 of the Public Information Act, the national law states the obligation of a holder of information to disclose information: (1) A holder of information is required to disclose the following existing information relating to the duties thereof: (31)² Open data subject to disclosure, information on the availability of open data and on licences, if necessary. § 3¹ implies that all public information access to which is not hindered is considered re-usable. Therefore, with the Public Information Act, the right of re-use is clearly linked to right of access in §4 (laying down that in order to ensure democracy, to enable public interest to be met and to enable all persons to exercise their rights and freedoms and perform their obligations, holders of information are required to ensure access to the information in their possession under the conditions and pursuant to the procedure provided by law).

Q13. Cultural Heritage Institutions allowing re-use (Article 3(2)) Article 3(2) sets out the principle that documents for which libraries (including university libraries), museums and archives hold intellectual property rights shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in the directive “where the re-use of such documents is allowed”. Is there any specific framework or rules at national level setting out where the re-use of such documents is allowed? Or is there any guidance from the Ministry in charge of implementing the PSI Directive, or from the Ministry responsible for culture or education? Alternatively, is there any guidance published by the CHI themselves, such as the national archives?

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There is no specific framework setting out in which cases the re-use of such documents is allowed. The National Library of Estonia Act578 (§ 6(11)), the Public Libraries Act579 (§ 15(22)), the Archives Act580 (§ 10(11)) and the Museums Act581 (§ 16(3)) include a provision simply stating that re-use is allowed on the conditions and pursuant to the procedure provided for in the Public Information Act, taking into account the specifications provided for in the respective Act and the Copyright Act (Autoriõiguse seadus).582 Public libraries, museums and archives are covered by the Public Information Act as holders of information according to § 5.1. There is no guidance on this from any ministry, nor from the cultural heritage institutions themselves.

Q14. Charging by Cultural Heritage Institutions (Article 6(4)) (b) Does national law (or case law or guidance) clarify how the concept of “reasonable rate of return” should be applied by cultural heritage institutions? The Public Information Act does not specify how a reasonable rate of return should be applied by a cultural heritage institution in particular, but rather provides a general concept applying to all public authorities. According to § 25(5) of the Act, a reasonable return on investment shall be up to 5% higher than the fixed interest rate applicable to the main refinancing operations of the European Central Bank, unless otherwise

578 The National Library of Estonia Act: https://www.riigiteataja.ee/en/eli/518062014003/consolide. 579 The Public Libraries Act: https://www.riigiteataja.ee/en/eli/ee/525062014001/consolide/current. 580 The Archives Ac: thttps://www.riigiteataja.ee/en/eli/ee/504032016002/consolide/current. 581 The Museums Act: https://www.riigiteataja.ee/en/eli/ee/530062014002/consolide/current. 582 Copyright Act: https://www.riigiteataja.ee/en/eli/519062017005/consolide.

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provided by law. According to the explanatory note to the Act amending the Public Information Act and other related Acts ((Avaliku teabe seaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus 71 SE)583 (RT I, 06.01.2016, 1), page 29), although the concept of a reasonable rate of return is included in the Public Information Act, for the sake legal clarity, it was also added to the Museums Act. Thus, § 20(3) (5) provides that in the case of a sale of the print files of digital images, the charged fee shall be cost based, to which a reasonable return on investment may be added.

Q15. Exclusive arrangements and the digitisation of cultural resources (Article 11(2a)) In respect of digitisation of cultural resources, how are arrangements granting exclusive rights made transparent or public (provided that exclusive arrangements exist in your country)? Is there an obligation to publish? Is there a national register? How is the making transparent and public of such arrangements controlled, and by whom? Does national law (or guidance) provide any clarity regarding what “reviewing” the duration of exclusivity (under Article 11(2a)) actually entails in practice?

583 Available only in Estonian at: https://www.riigikogu.ee/tegevus/eelnoud/eelnou/c32e74a6-2903-4736-8513- d18358fc1ad3/Avaliku%20teabe%20seaduse%20muutmise%20ja%20sellega%20seonduvalt%20teiste%20seaduste%20muutmise%20seadus.

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There is no specific provision in Estonian legislation in relation to exclusive arrangements regarding the digitisation of cultural resources. § 3(2) of the Public Information Act states that a holder of information is not allowed to enter into exclusive agreements for the re-use of information, unless this is necessary and justified in the public interest, and that the validity of the justification should be reviewed at least every three years. However, this provision already existed before the 2013 amendment and neither the Act amending the Public Information Act and other related Acts nor its explanatory note584 make reference to Article 11(2a) of Directive 2003/98/EC.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) No, § 3(4) provides that if it is impossible or extremely burdensome to convert open data into a digital format, machine-readable format or open format, the holder of information shall grant access to open data in their original format or in any other format.1 “disproportionate effort” (Art 5(2)) Yes, pursuant to §18(2), a holder of information may refuse to comply with a request for information if:  there are no technical means therefor;  the type of medium does not enable compliance;  oral communication of the information would excessively

584 Available only in Estonian at: https://www.riigikogu.ee/tegevus/eelnoud/eelnou/c32e74a6-2903-4736-8513- d18358fc1ad3/Avaliku%20teabe%20seaduse%20muutmise%20ja%20sellega%20seonduvalt%20teiste%20seaduste%20muutmise%20seadus.

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hinder performance of the main duties of the holder of information due to the time this would take.

(i) published online in their original, unmodified form to ensure § 30(1) of the Public Information Act requires a holder of information timely release to disclose information in a manner which ensures that it reaches every person who needs the information as quickly as possible. Moreover, according to § 30(3), a holder of information is required to disclose promptly any information concerning danger which threatens the life, health or property of persons or the environment, and shall select the quickest and most suitable manner in order to avert such danger and alleviate the possible consequences.

(j) published and updated frequently at the highest possible level There are no specific requirements. of granularity to ensure completeness and accuracy

(k) published and maintained at a stable location, preferably on There are no specific requirements. the highest organisational level within the administration, to ensure easy access and long-term availability 1 (l) published in machine-readable and open formats (CSV, JSON, According to § 3(4) of the Public Information Act, if possible and XML, RDF, etc.) to enhance accessibility appropriate, the holder of information should grant access to public information in a machine-readable format and open format. A

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machine-readable format is described as being structured in a way that software applications can easily identify, recognise and extract specific data including individual statements of fact, and their internal structure. An open format is defined as one that is platform- independent and made available to the public without any restriction that impedes the re-use of documents. However, if conversion into such formats is impossible or would require a disproportionate effort, access shall be granted in the original format or any other format.

(m)described in rich metadata formats and classified according to There are no specific requirements. standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability

(n) accessible as data dumps (massive outputs of data) as well as There are no specific requirements. through application programming inter faces (APIs) to facilitate automatic processing

(o) accompanied by explanatory documents on the metadata and There are no specific requirements. controlled vocabularies used, to promote the interoperability of databases

(p) subject to regular feedback from re-users (public There are no specific requirements. consultations, comments box, blogs, automated reporting, etc.) to maintain quality over time and promote public involvement

Such arrangements are set out in § 29 of the Public Information Act. Holders of information are required to disclose the data of database provided for public use if this is possible and appropriate, in an up-to-date version and in a manner and format which allows the downloading of open data of a database as a full set of data together with metadata in a machine-readable and open format. However, if conversion of the open data of a database into machine-readable format or open format is impossible or would require disproportionate effort, the holder of information shall ensure disclosure of the open data of database in their original format or in any other format. Furthermore, the open data of database must be accessible through the Estonian information gateway (referred to above).

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? Estonia retained existing rules, but also added provisions in response to the 2013 amendment. The pre-existing rules set out that access to information shall be free unless payment is prescribed by law (§ 4(4) of the Public Information Act). The public body must cover the administrative costs of making information available to the public if it is required by law (§ 25(1) of the Public Information Act). Namely, a public body has to cover the administrative costs incurred in responding to a request for information or publishing data on their website. A person asking for information shall pay up to 0.19 EUR per page for printouts and copies on paper starting from the twenty-first page, unless a state fee for the release of information is prescribed by law (§ 25(2) of the Public Information Act). Any income received by supplying information for re-use must not exceed the cost of supplying the information, although a reasonable depreciation cost can be added, which is intended to ensure the sustainability of the service (§ 25(4) of the Public Information Act). The new rules introduced in response to the 2013 amendment add that holders of information, who must cover a substantial part of the costs arising from the performance of their public duties or related to the holding of information may include, in addition to the costs specified in § 25(4), a reasonable return on investment on the income received for supplying information for re-use. A reasonable return on investment shall be up to 5% higher than the fixed interest rate applicable to the main refinancing operations of the European Central Bank, unless otherwise

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provided by law (§ 25(5) of the Public Information Act). Furthermore, if a fee is charged for the re-use of information, the holder of information shall disclose the basis for the calculation of the fee at least every three years and organise a recalculation of the fees, if necessary (§ 25(6) of the Public Information Act).

Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2) (a) of the PSI Directive?

National law does not clarify the scope of the exception. However, the explanatory note to the Act amending the Public Information Act and other related Acts585 ((RT I, 06.01.2016, 1), page 16 (available only in Estonian)) states that whether and to what kind of holders of information the charging exception applies shall be decided on a case-by-case basis.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2) (b)? (I.e. to which entities it applies and how).

585 Available only in Estonian at: https://www.riigikogu.ee/tegevus/eelnoud/eelnou/c32e74a6-2903-4736-8513- d18358fc1ad3/Avaliku%20teabe%20seaduse%20muutmise%20ja%20sellega%20seonduvalt%20teiste%20seaduste%20muutmise%20seadus.

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See previous answer.

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

The explanatory note to the Act amending the Public Information Act and other related Acts (page 15-16) states that the basis for the determination of the expenses should be the estimated costs related to maintaining and disclosing information from registers and databases. The explanatory note lists examples of estimated costs. Costs related to the creation of information can arise from preparation (i.e. the creation of information and metadata, quality control, codifying), collection (i.e. collecting and sorting data) and anonymisation. Costs related to the dissemination of information can arise from building and maintaining the infrastructure, propagation (e.g. to DVDs, USB sticks, SD cards), handling (packaging) consultation (i.e. customer service costs) and delivery costs. § 25(5) of the Public Information Act states that a reasonable return on investment shall be up to 5% higher than the fixed interest rate applicable to the main refinancing operations of the European Central Bank, unless otherwise provided by law. The number stems from point 4.2.4 of the Commission Guidelines on recommended standard licences, datasets and charging for the reuse of documents (2014/C 240/01).586

586 European Commission Guidelines on recommended standard licences, datasets and charging for the reuse of documents: http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:52014XC0724(01)&from=EN.

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Q23. Article 4(3) provides that, in the event of a negative decision, the public sector body shall communicate grounds for refusal on the basis of the relevant provisions of the access regime in the Member State, or of the national provisions adopted pursuant to the Directive. What are the relevant provisions of the access regime in your Member State which can act as a ground for refusal? § 23 of the Public Information Act lists the grounds on the basis of which a holder of information must refuse to comply with requests for information587 and when the holder may refuse to comply with such requests. A holder of information shall refuse to comply with a request for information if restrictions apply to the requested information and the person requesting it does not have the relevant access rights; if the holder of information does not possess the requested information, does not know who possesses it and is unable to identify the holder of the requested information; if compliance with the request is impossible because it is not evident from the request what kind of information is asked for; and if the person requesting information has not paid the state fee or the expenses relating to compliance with the request if such fees are prescribed by law and the holder of information has not withdrawn the claim for expenses incurred to the covered (§ 23(1)). A holder of information may refuse to comply with a request for information if the requested information has already been released once and the person making the request does not justify the need to obtain the information a second time; if the information requested from a natural or legal person in private law does not concern the performance of public duties; if compliance with the request would require a change in organisation of the work of the holder of information, hinder the performance of public duties or require unnecessarily disproportionate expenses due to the large volume of the requested information; if the request cannot be complied with by a single release of information; if in order to comply with the request, information would have to be additionally systematised and analysed and new information would have to be documented on the basis thereof since such a request for information is deemed a request for explanation and shall be responded to

587 According to § 6 of the Public Information Act «requests for information are defined as requests to obtain or re-use information submitted by the holder».

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pursuant to the procedure prescribed in the Response to Memoranda and Requests for Explanations Act (Märgukirjale ja selgitustaotlusele vastamise ning kollektiivse pöördumise esitamise seadus);588 if a court has established that the active legal capacity of the person making the request is restricted; and if there are no contact details concerning the person making the request for information (§ 23(1)). Q24. Article 4(4) sets out the requirement for an impartial redress scheme at national level. In respect of the redress scheme at national level: How does the appeal system work? Is this clear from the national law transposing the Directive? In the event that a new body is established in order to deal with appeals, is the manner in which that body operates clear from national law? Are there any time limits related to appeals? For example, must the redress board come to a decision within a certain time period etc.? § 23.3 of the Public Information Act provides that the holder of information shall notify the person making the request for information of refusal to comply with the request for information and the reason for such refusal within five working days. According to § 46 of the Public Information Act, a person whose request for information has been refused or has been unsatisfactorily complied with may file a challenge with the Estonian Data Protection Inspectorate or an action with an administrative court, either personally or through a representative. The Public Information Act does not further clarify the appeal system. The conditions and procedures for filing a charge are set out in Chapter 5 of the Administrative Procedure Act ((Haldusmenetluse seadus) (RT I 2001, 58, 354))589. A charge must be filed within 30 days of the day when a person becomes or should become aware of the challenged administrative act or measure, unless otherwise provided by law (§ 75). Unless otherwise provided by law, a challenge shall be adjudicated within 10 days after the challenge is delivered. However, if a challenge needs to be further examined, the term may be extended up to 30 days

588 Response to Memoranda and Requests for Explanations and Submission of Collective Addresses Act, available in English at: https://www.riigiteataja.ee/en/eli/ee/507042014003/consolide/current. 589 Administrative Procedure act: https://www.riigiteataja.ee/en/eli/ee/531102016002/consolide/current.

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(§ 84). A person whose challenge is dismissed or whose rights are violated in challenge proceedings has the right to file an appeal with an administrative court under the conditions and pursuant to the procedure provided by the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik).590

The Public Information Act §4 (4) lays down transparency rules. These refer to the obligation of granting access to public information by any holder of information – specifying that a holder of information must publish the conditions for accessing the information and the amount to be charged for access and, if a person making a request for information so requires, provide explanations concerning the cost-orientation of the charges. By the same token, §25 lays down the rules for covering expenses relating to compliance with requests for information. Therefore, these transparency rules refer to charging for access and cost of access. The Public Information Act specifies (§ 3: Re-use of public information) that any type of information to which access is granted can be re-used.

590 Code of Administrative Code Procedure: https://www.riigiteataja.ee/en/eli/ee/527012014001/consolide/current.

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Q26. Are there any national rules (or case law) requiring entities, not being a “body governed by public law” as referred to under Article 2.2a of the PSI Directive to share data with public bodies? These could be entities of commercial and industrial character or entities operating under public services concession (delegation) contracts. If so, please indicate: Which entities do these rules apply to and how are these entities defined? Which types of data do the rules apply to? For example, data with some sort of societal value? On what basis they are required to share? For example, because the data was gathered in the context of activities funded by the government in some way (such as grants, procurement contracts, or concessions granted to the private entity). Yes, the obligations of holders of information (i.e. access and re-use) extend to legal persons in private law and natural persons if the persons perform public duties pursuant to law, administrative legislation or contracts, including the provision of educational, health care, social or other public services – with regard to information concerning the performance of their duties. Therefore, such persons are only required to share data which is generated upon performance of public duties, as specified above. (The Public Information Act defines what public information is according to national law, i.e. information which is recorded and documented in any manner and on any medium and which is obtained or created upon performance of public duties provided by law or legislation issued on the basis thereof (§3). The same Act also that specifies the holders of information in §5 can also be, in addition to public law institutions, legal persons in private law and natural persons (§5 (1) 3)), whereas the obligations of holders of information extend to legal persons in private law and natural persons if the persons perform public duties pursuant to law, administrative legislation or contracts, including the provision of educational, health care, social or other public services – with regard to information concerning the performance of their duties (§ 5(2)). Additionally, by §5 (3) The following are deemed to be equal to holders of information 591 : 1) undertakings which have a dominant position in the market or special or exclusive rights or which are natural monopolies – with regard to information concerning the conditions and prices of the supply of goods and services and changes thereto;

591 According to §9 (1) § 9 of the Public Information Act, holders of information are required to grant access to information in their possession pursuant to the procedure provided by law.

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2) sole proprietors, non-profit associations, foundations and companies – with regard to information concerning the use of funds allocated from the State or a local government budget for the performance of public duties or as support.

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

No, the Public Information Act § 5 (1) specifies that within the scope of this Act, public law bodies who are holders of public information are: 1) State and local government agencies; 2) Legal persons in public law.592 The General Part of the Civil Code Act (Tsiviilseadustiku üldosa seadus)593 specifies that “bodies governed by public law” are the State, local governments and other legal persons founded in the public interest and pursuant to an Act concerning such legal person are legal persons in public law (§ 29(2)).

592 A list of Estonian legal persons in public law can be found in this website: https://www.eesti.ee/eng/contacts/avalik_oiguslikud_juriidilised_isikud_1. 593 General Part of the Civil Code Act, available in English at: https://www.riigiteataja.ee/en/eli/528082015004/consolide.

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data concerned?

No issues have been noted in case law. Furthermore, there is no such academic discussion to be found.

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France Country: France Author: Benjamin Jean Date: 20 December 2017

Open Data provisions in France have gone further “in openness of public information” than the PSI Directive.594

1. Both Law No. 2015-1779 of 28th December 2015 (Loi relative à la gratuité et aux modalités de la réutilisation des informations du secteur public also known as Loi Valter) and Law No. 2016-1321 of 7th October 2016 (Loi une République numérique also known as Loi Lemaire)595 have introduced new provisions: - a principle of cost-free by default (Article 324-1 of the Code des relations entre le public et l’administration hereinafter “CRPA”): public information re-use is free of charge by default;

594 Benjamin Jean and Laure Kassem, Opening public data: new obligations and new key actors, v.1.1, December 2017. 595 Impact assessment of the bill “pour une République numérique”, 9th December 2015.

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- a principle of Open Data by default (Articles L 312-1-1 and D 312-1-1-1 of the CRPA): the administration – i.e. bodies governed by public law and bodies governed by private law entrusted with a public service mission and with more than 50 officials or salaried workers – shall publish online all its administrative documents (with very few exceptions). It includes: ◦ documents submitted to anyone who has made a request for the release of an administrative document and their updates; ◦ documents contained in the repertoire of the main documents created or received by the above-mentioned entities; ◦ databases, regularly updated, that these entities created or received and which have not already been published; ◦ data, regularly updated, whose publication has economic, social, health or environment interest. The above provisions apply only to documents which are already in electronic form. These provisions will lead to a rise in the amount of data available online in a spontaneous way. Therefore, in the long run, they will lead to a considerable reduction in the number of requests. Moreover, the new provisions have triggered a complete change of philosophy with a “free by default” principle (instead of the previous “dotted open data”.596 The increase in the amount of data available also contributes to transparency objectives (open government) and responds to the interest of Open Data from an economic point of view, through the creation of products and services. In the same vein, the law has been designed in a transparent manner, especially through the use of a public consultation. 2. An increasing number of entities are involved in Open Data: - provisions concerning re-use of public sector information now also apply to semi-private entities – i.e. both EPIC (public establishment with an industrial and commercial nature) or private companies with public service mission; - derogations related to re-use of public sector information for research establishments, universities and cultural establishments have been removed; and - private entities have to open some data which are considered as data of general interest (e.g. concessions/ public delegation contracts).

596 Term previously used to describe an un-unified regime, with various exceptions and without the “right to ask” for the publication of the resources, even if several Open Data platforms were already used.

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Such measures have allowed the alignment of access and re-use regimes. As Law No. 2016-1321 extended the regime to software produced within the administration, the DINSIC is writing on GitHub its Politique de contribution open-source de la DINSIC597 (Open Source policy) in order to manage software developed within the administration. These software programs are part of the default Open Data. It is important for the directive to expressly include in the concept of public information the notion of “source code”.

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc.?

The Minister of State for the Digital Sector is responsible for implementation of the PSI Directives in the national legal order in France. In particular, Etalab’s mission is responsible for coordinating the policy of opening up and sharing public data.598 It is part of the Inter-ministerial Directorate for Digital Technology and the Government information and communication system.599

597 https://disic.github.io/politique-de-contribution-open-source/. 598 www.etalab.gouv.fr/en/qui-sommes-nous. 599 wwwgouvernement.fr/en/composition-of-the-government

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The PSI Directive and the INSPIRE600 Directive have the same purpose: to make information freely accessible. Both Directives have the objective of making information available in readable and electronic formats in order to facilitate their re-use.601 The opening up of environmental data has been subject to a specific regime since Law No. 2005-1319 of 26 October 2005 transposing the Inspire Directive. This regime is very close to the general regime applicable to the opening up of administrative documents. One of the main differences lies in the fact that within the special regime, the right of access concerns the opening up of the information itself (and not documents) which is more in line with current practice and also allows for a wider availability, and an extended communication obligation. Regarding the relationship with the general system, the Commission for Access to Administrative Documents (CADA) considers that the special regime is exercised under the terms of the general regime. There is therefore complementarity. Moreover, the CADA is working to implement the most favorable regime for re-users. However, the Loi pour une République numérique transposing the PSI Directive is changing things by going beyond what was provided for in the environmental data regime. Indeed, through the default Open Data principle, it expressly introduces environmental data into the general regime (Article L 312-1-1 of the CRPA states that data of environmental interest must be published online).

600 Francis Merrien and Marc Léobet, Mission of spatial information, The Inspire Directive for neophyte, 3rd ed.: https://georezo.net/blog/inspire/files/2011/12/La_directive_Inspire_pour_les_neophytes_V3.pdf#%5B%7B%22num%22%3A185%2C%22gen%22%3A0%7D%2C%7B%22na me%22%3A%22XYZ%22%7D%2C134.7%2C547.1%2C0%5D 601 Open Data support, Presentation Metadata, “Open public data” and PSI directive”, 2013: https://www.europeandataportal.eu/sites/default/files/training_1- 1_open_government-and-the-psi_fr.pdf.

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On the contrary, the INSPIRE Directive helped public sector entities to build and share best practices. Forcing each platform to be “interoperable by design”, this Directive facilitates collaboration (regarding spatial data, but also other data). However, the convergence was not immediate and there is still some redundancy between Open Data Platform & spatial data Platform (both in terms of tools and governance).

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In order to ensure public access 1.Open Data provisions602 It is widely acknowledged that French administrations cannot rely on their copyright in order to limit public access to or re-use of information.603 In order to go further in this logic, it would be relevant to allow the immediate entry of certain works in the field, particularly when it concerns collective work. Regarding third-party intellectual property rights, although Article L 311-4 of the CRPA provides that “administrative documents shall be released or published subject to literary and artistic rights” (only access), the CADA considers that these rights do not prevent the communication or the publication of the document but only its reuse.604 Article L 321-2 of the CRPA specifies that the content of the administrative documents encumbered with intellectual property rights (belonging to third parties) are not considered as public information and as such are not subject to the principle of free re-use. Consequently, in cases of intellectual property rights belonging to third parties, administrations must indicate that the document is covered by intellectual property rights and that the reuse of this information is permitted under the conditions provided by the intellectual property code. They must also indicate the identity of the rights holder or if they do not know the identity of the person from whom it is possible to find out. The difficulty of applying this text lies in the notion of “third parties”, particularly with regard to civil servants. Since DADVSI Law (Law No. 2006-961 of the 1st August 2006, Relative au droit d’auteur et aux droits voisins dans la société de l'information), the administration has benefited from an automatic assignment of rights regarding works created by civil servants in the exercise of a public service mission or a formal request to do so. This assignment is incomplete (for instance, they cannot make commercial use of such works) and, as such, it is not possible for the administration to rely on this automatic transfer to diffuse data under an open data license (Open Data License expressly permits commercial reuse). To do so, they will need to obtain a complementary license from the civil servant (if needed and apart from the

602 Tristan Azzi, Open Data and Intellectual Property, Etat des lieux au lendemain of the adoption of the Law “pour une République numérique”, Dalloz, 2017, p.583. 603 CADA, November 5th, 2009; CADA, November 19th, 2015. 604 CADA, opinion No. 20144578, January 8th, 2015; Administrative Tribunal of Paris, March 10, 2016.

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automatic assignment of rights, the university has a right of preference). In this context, it is necessary to rethink the regime of intellectual property rights held by civil servants since it can constitute a barrier to openness.605 More broadly, it appears that copyright through the criterion of originality is not suitable for databases. However, in spite of this lack of suitability, it can constitute an obstacle to the opening up of data, which implies that databases cannot be covered by copyright. Certainly, the current approach is ineffective since it delays the publication of documents, insofar as the judge only recognizes the originality of the structure of the databases under very strict conditions which most of the time are not met. 2. Copyright provisions Indirectly, copyright exceptions make possible the diffusion of public information to the extent that they neutralize the enforcement of intellectual property rights. Among the exceptions provided by Article L 122-5 of the Code de la propriété intellectuelle, some relate more directly to the reuse of public information such as:  the freedom of panorama;  analyses and short quotations justified by the critical, controversial, educational, scientific or informational nature of the work in which they are incorporated;  the acts necessary to access the contents of an electronic database for the purposes and within the limits of the use provided for by contract;

These exceptions may be used in defence of the application of the triple test. The French transposition of such “triple test” is controversial (even if the Law expressly restricts exceptions, the Judge needs to determine if the “triple test” is fulfilled). In order to preserve competition The preservation of competition is addressed in the regime of the re-use of public sector information, through the choice of license in the case

605 Article L 121-7-1 of the Code de la propriété intellectuelle.

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where the administration freely distributes the data it produces or receives. Outside this regime, the theory of essential facilities may be used in order to open more data. 1. Any choice of license will have to be justified (Article L 323-2 of the CRPA). The administration must be able to demonstrate that the chosen license does not impose any restrictions on the re-use of the data or if this is the case, these restrictions are justified by “reasons of general interest” in a “proportionate” way and they have neither the object nor the effect of restricting competition. In this regard, the use of share- alike licenses - which impose the redistribution of changes under the same license, see “Open Data Base License”– remains also very controversial in France, reflecting a new vision of the general interest that invites the collective to prevail over the individual to ensure that everyone can benefit from it. This constraint is proportional in the sense that it only concerns the improvements made to the resources initially made available, making possible business models based on services and complementary resources. It has been held by the Conseil d’Etat606 that this kind of “copyleft obligation”, which affects all actors in the same way, promotes competition and does not limit anyone’s ability to benefit from these resources in an Open Innovation approach.607 Furthermore, it should be acknowledged that Creative Commons are not part of authorized licenses. 2. Theory of essential facilities The essential facilities theory can be opposed to copyright or sui generis law when there is misappropriation of the original function of intellectual property, by an enterprise and for the sole purpose of protecting a market. Thus, when a company in a dominant position in a market (monopoly or quasi-monopoly) has a “facility” (installation, resource, good, service, etc.) that cannot be recreated in a reasonable way and denies access to a third party without a legitimate reason whereas this access is essential to carry on an activity on a neighboring market, it can be condemned on the basis of competition law. The essential facilities theory can apply if the following elements are brought together:

606 See, for instance, Conseil d'Etat, September 30th, 2011 concerning Free and Open Source Software. 607 Benjamin Jean et Laure Kassem, “Empowering Open Innovation”, 2016.

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- a refusal of access without objective justification, - from one or more dominant companies in an upstream market, - relating to an essential facility for carrying on an activity in a downstream market, - impossible to reproduce under reasonable conditions, - hindering the appearance of a new product.608 French jurisprudence has taken these elements into account by distinguishing: abusive exercise and legitimate exercise. The France Telecom/Lectiel judgment609 applied the theory of essential facilities in the context of a case database protected by the intellectual property.

In order to ensure public access to information 1. Open Data provisions Administration may not enforce its sui generis rights against the free re-use of a database - which has been published according to the Article L 312-1-1 of the CRPA (Open Data by default). However, sui generis rights of third parties may affect public information re-use (Article L 321-3 of the CRPA). 1.1 Administrations’ rights

608 Magill and IMS Health judgments of April 6th, 1995 and April 29th, 2004. 609 Cass. Com., December 4th, 2001.

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Given that the law lacks precision, some court decisions have limited openness of public data to ensure sui generis rights respect.610 The law pour une République numérique has clarified the situation giving precedence to Open Data rights over sui generis rights. As a result, the Council of State in a judgement of August 2, 2017 aligned its position with the law pour une République numérique. Nevertheless, sui generis rights on documents produced and received by administrations as part of an industrial or commercial public service mission are an obstacle to data re-use. Therefore, the principle stated above applies only where documents are produced and received as part of an administrative public service mission (see Q26). 1.2. Third parties’ rights Data contained in administrative documents over which third parties hold intellectual property rights - which includes the sui generis right - are not considered as public information and as such are not freely reusable, unless, they are under an open (data/content) license. It is necessary to obtain the agreement of the producer. Therefore, the administration must specify at the time of the communication or diffusion of the document the identity of the right’s owner or the person from whom this identity can be obtained (Articles L 322-5 and L 321-2 of the CRPA). However, this risk should be mitigated as, in the majority of cases, the administrations will be the rights owners insofar as they belong to the producer defined as the person taking the initiative and bearing the risk of the investment. The risk must be qualified as “substantial” (Article L 341-1 of the Code de la propriété intellectuelle). 2. Sui generis right provisions Re-users may rely on the sui generis right exceptions to freely use the information contained in administrative documents, including:  the extraction or re-use of an insubstantial part of a database, by the person who has lawful access to it;  the extraction for private purposes of a substantial part of the contents of a non-electronic database (subject to respect for copyright or related rights in the works or elements incorporated in the database);  the extraction or re-use of a database under the conditions defined in point 7 of Article L 122-5, point 1 of Article L 122-5-1 and Article L

610 Poitiers Administrative Tribunal, January 13, 2013; Bordeaux Administrative Court of Appeal, February 26, 2013.

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122- 5-2, Code de la propriété intellectuelle;  the extraction and re-use of a substantial part of the content of a database, subject to databases designed for educational purposes and databases produced for a written digital edition. (Article L 342-3 of the Code de la propriété intellectuelle). In order to preserve competition (See Q5).

The above-mentioned provisions (see Q5 and Q6) are also applicable to researchers. In this respect, it should be recalled that teacher- researchers have a special status and are considered as “third parties”. Indeed, unlike other public officials, they retain their intellectual property rights as part of their research activities. In addition, apart from these provisions, specific research measures have been adopted by the law pour une République Numérique611 to facilitate: - access to scientific writings (open access - Article 30), especially by limiting the duration of embargo clauses. Indeed, they are

611 Impact assessment of the bill pour une République numérique, December 9th, 2015.

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limited to 6 months in the field of science, technology and medicine or 12 months with the possibility for the author to publish his writing for free in an open archive, even if he has given his rights to a publisher. This is only applicable to scientific writings presenting certain financing conditions, and published in periodicals which have a publication frequency of at least once a year. In addition, Article 30 now provides that any data resulting from a research activity where at least half of the finance comes from public funds (exhaustively listed) are freely reusable if they are not covered by a specific right and they have already been published by a researcher, institution or research organization. So that publishers cannot circumvent these provisions, they are considered as public order. - the re-use of information contained in scientific literature (data mining - Article 38): it is now possible for professors from public research institutions or for these institutions themselves to make copies or digital reproductions from a lawful source for the exploration of texts or data included or associated with scientific writings. It is also possible for anyone who has lawful access to a database to make copies or digital reproductions of this database (which is not just for public research) to search for text and data included or associated with scientific writings. In both cases, this text search cannot take place for commercial purposes. The Law for a Digital Republic has thus dedicated a new exception to copyright (Article L 122-5 of the Code de la propriété intellectuelle). Nevertheless, several grey areas remain to be defined in the decrees whose publication has been suspended pending the adoption of the Copyright Directive. The concepts present in the text are subject to interpretation.

Q8. Are there any national rules that regulate or affect the access and re-use of data held by public research and educational institutions (which are currently excluded by Article 1.2 (e) of the PSI Directive)? Please describe (if so). Since the Valter Law came into force, public research and educational institutions have been subject to the general public information re-use regime, whereas previously these entities were subject to derogations. However, there are several exceptions which can affect Open Data and which are not always specific to research data but which concern in particular research bodies: - data protected by national defence may not be released or published (Article L 311-5 of the CRPA): it is possible only after deletions (Article L 311-7 of the CRPA);

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- data on national security risks, safety risks for the establishment or the information system may not be released or published (Article L 311-5 of the CRPA); - data covered by industrial and commercial secrets (Article L 311-6 of the CRPA): this exception will be applied in the case where the research work is partially financed by private actors; - data concerning risks for the protection of the State’s scientific and technical potential (Article 410-1 of the Criminal Code and decision of July 3rd, 2012); - the protection of statistical secrecy may limit data release or publication (Article L 311-8 of the CRPA, Law No. 51-711 of the 7th June 1951);612 - data protected by third parties’ intellectual property rights (see Q5 and Q6) or teachers-researchers’ intellectual property rights: teachers-researchers have a derogation (contrary to other officials). As such, they hold all intellectual property rights on their (scientific) works (Article L 952-2 of the Code de l’éducation); - information containing personal data or concerning privacy (see Q9 and Q10).613 Thus, in the absence of a derogatory regime, regulation takes place by way of exceptions.

612 Report to State Secretariat for industry, digital and the innovation – Reseachers’ access to public data, Overview of the situation and proposals for actions, National Council for Statistic Information working group, March 2017. 613 Opening of research data – Guide for the analysis of the legal framework in France, working group led by Inra, v.1, November 2016.

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The Law Pour une République numérique specifies that administrations shall respect Law No.78-17 of 6th January 1978 (Law Informatique et Libertés). Initially, the link between personal data and the opening of data was dealt with only in the context of the right of re-use, which left a risk of the possibility of communicating documents containing personal data. The ability to publish the administrative documents and the dedication of the default Open Data made it necessary to clarify this articulation at the stage of access to these documents. This is why two new provisions have been introduced: - when administrative documents are exchanged between administrations, these entities shall respect the Law relating to personal data (Article 1 of the Law Pour une République numérique); - when administrative documents containing personal data are published, these data shall be anonymised irrespective of the agreement of the person concerned (Article L 312-1-2 of the CRPA). The anonymization is defined as “the use of a set of techniques in order to ensure that any identification or re-identification of people is impossible, by whatever means and is irreversible”.614 The administrations could submit to the CNIL anonymization methodology. These methodologies will specify the anonymization process implemented according to the nature of the data. The CNIL has the role of approving or certifying the methodologies of anonymization. The previous provisions included in the regime of the reuse of public information have been repealed (Article L 322-2 of the CRPA). Nevertheless, a provision remains unchanged: the administration is only required to anonymise the data if this operation does not require disproportionate efforts. If the efforts are considered disproportionate, the data will not be reusable (Article R 322-3 of the CRPA). In this context, the CNIL is currently drafting a “compliance pack” in collaboration with CADA and SGMAP to assist administrations in the opening of their public data - the CADA law reported similar provisions regarding, in particular, the reuse of public information (Article L 322-2 of the CRPA). These provisions raise questions as to their link with Article L 311-6 of the CRPA. In this regard, the CNIL specified in an opinion of November

614 CNIL decision of November, 19th, 2015 on notice about the Law Pour une République numérique project, G29, notice relating to anonymization techniques of April 10, 2014, http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp216_fr.pdf.

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19th, 2015 that compliance with Article L 311-6 of the CRPA does not prejudice the provisions of the Loi informatique et libertés, to the extent that the first text concerns the protection of privacy, and the second is the protection of personal data. However, this distinction is weak. The relationship between Open Data615 and personal data protection is difficult. In France, the question was removed by referring to the provisions of the Loi Informatique et Libertés of 1978. It was thus a question of finding a balanced approach. However, the stakes in Open Data are such that they would justify the balance of interests in its favour. Furthermore, the exception related to private life, which is similar to - without being confused with - the protection of personal data, also limits the right of access. In the course of legislative work under the loi pour une République numérique, there had been a discussion about the protection of personal data and the notion of privacy. This would, on the one hand, facilitate the articulation of these two notions and, on the other hand, promote a wider opening of administrative documents. However, this approach has not been successful.

Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is The CNIL (Commission Nationale de l’Informatique et des Libertés) is made available for re-use currently drafting, in collaboration with Etalab and CADA, a "compliance pack" (or "open data package") whose objective is to reconcile the opening up of data with the protection of personal data.

615 See Livre Blanc sur l'open data jurisprudentiel - Open Law: www.openlaw.fr.

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It aims to clarify the legal framework in this area, by framing practices and answering recurring questions.616 It has three objectives: 1) to facilitate understanding of the legal framework applicable to Open Data in the presence of personal data 2) to facilitate its implementation by producers and re-users 3) to answer questions mainly from local authorities and citizens. The obligation to anonymise or pseudonymise PSI containing personal As above. data before making it available for re-use (possibly including methodologies or procedures for pseudonymisation or anonymization) The obligation to conduct a data protection impact assessment or a No. similar risk assessment before making PSI containing personal data available for re-use The obligation to include data protection provisions in licenses for re- No, but the “Open licence” version 2.0, which has been authorized by use of PSI containing personal data (e.g. including restrictions on the decree (Decree No.2017-638 of April, 27th, 2017), contains such purposes of use of the PSI to ensure compatibility with the original contractual provision. The OdbL (Open Data Commons Open Database purposes) License), which has also been authorized by decree, does not.

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis?

616 First meeting of the CADA-CNIL college: a joint approach to public data, October 24th, 2017: https://www.cnil.fr/fr/premiere-reunion-du-college-unique-cada-cnil-une- approche-conjointe-de-la-donnee-publique.

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Documents for which citizens or companies need to prove a particular The following documents are only communicable to the interested interest to obtain access parties concerned: - documents covered by privacy, medical secrecy, industrial and commercial secret; - documents making an appreciation or a value judgement on a named or easily identifiable natural person; - documents showing the behaviour of a person, when the disclosure of that behaviour could be detrimental to him. (Article L 311-6 of the CRPA). Documents relating to national security, statistical confidentiality or Documents relating to national security cannot be disclosed (Article L commercial confidentiality 311-5 of the CRPA). Documents relating to commercial confidentiality are only communicable to the interested parties (Article L 311-6 of the CRPA). Documents relating to statistical confidentiality have to respect statistical confidentiality rules. It is nevertheless possible to obtain information on them on the basis of a recommendation from the Statistical Confidentiality Committee. But the CRPA does not expressly refer to that (with the exception of Article L 311-8 of the CRPA introduced by the Loi pour Une République numérique). Therefore, it is necessary to refer to the following special regime (Law No. 51-711 of

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June 7th, 1951 sur l’obligation, la coordination et le secret en matière de statistiques).617 Documents the supply of which is an activity falling outside the public See Q26. task Documents containing personal data No. Documents held by educational and research establishments (other The Valter Law abolished the derogatory regime related to the reuse than university libraries) and documents held by cultural of public information and, universities, research centres and establishments other than libraries, museums and archives institutions as well as cultural organizations, are subject to the general public information re-use regime; while public archives, are subject to a specific regime (decision of August 8, 2017). Documents held by public service broadcasters and their subsidiaries Radio and TV data concerning airtime are considered as “data of general interest” and as such must be opened up.

Regarding other data, it depends on the status of the organization; more specifically, if it carries out a public service mission whether of an administrative nature or of an industrial or commercial character, the broadcasters may be required to apply the general regime of the opening up of the data. For example, Radio France, which has a public service mandate of an industrial and commercial nature, is obliged to open its data and, as such, is conducting numerous Open Data initiatives.

617 Guide to statistical confidentiality, Insee, 2010.

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Documents for which 3rd parties hold intellectual property rights See Q6 and Q7.

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

The right of access and the right of re-use are linked. Any document which has been the subject of a communication or a diffusion is generally subjected to the principle of free use and free re-use. However, some restrictions remain: - the sui generis rights belonging to the administrations referred to in Article L 300-2 of the CRPA and exercising a public service mission of an industrial and commercial nature subject to competition may constitute an obstacle to reuse; - derogations from the principle of free admission: possibility of establishing a fee when: ◦ Administrations are required to cover by their own resources a substantial part of the costs related to the performance of their public service tasks (Article L 324-1 of the CRPA); ◦ fees related to information derived from the digitization of collections of libraries, including university libraries, museums and archives and the case of associated information when such information is marketed jointly (Article L 324-2 of the CRPA). There is a will to standardize the situation of the various actors subject to the general regime and to avoid special cases. The application of fees with regard to digitization operations in the cultural field leaves a derogation for cultural data and emphasizes their specificity, whereas they would otherwise tend to be distributed free of charge in the same way as other public information. However, specific regimes have been maintained and others have been created. This raises difficulties of application in terms of articulation between the general system and specific regimes (e.g. mobility data): - the 2015 Macron Law (Article 4) forced private and public entities to open data from regular public transport services and mobility services. It concerns all data which are needed to inform travellers. These data are exhaustively listed in the law. The obligation of openness applies to the operators of transport and mobility services as well as to the transport organizing authorities (local 514

authorities). However, those authorities are required to share with the public documents produced or received in the exercise of a public service mission covered by Article L 312-1-1 of the CRPA, which potentially covers mobility data. Article 4, of the Macron law leaves the possibility to the actors concerned to make a certain number of adjustments (for instance, they can ask for fees in order to access data – their use should be free of charge). - Therefore, there is a legitimate discussion about which regime should apply: the Macron Law; the Loi pour une République numérique (which is more recent); or both? Should we consider them as complementary? Some consider that under the principle “the special rules derogate from the general rules”, the regime provided for by the Macron Law must apply to the data necessary to inform travellers, which are exhaustively enumerated by the text and, therefore, the general regime of the loi pour une République numérique applies outside the scope of this data. The draft law impact study states that the legislator has defined the regime on mobility data, as provided by the Macron Act, a special regime. Others consider that these two regimes are complementary and that any potential re-user must be able to obtain the diffusion of data on one or the other basis. This approach is supported by the fact that in case of difficulty in the relationship between the regimes, it is appropriate to apply the regime in a manner favourable to re-users. It should also be noted that the loi pour une République numérique is more recent than the Macron law, which is in line with the complementary nature of the texts.

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The Valter Act specifies that the right to re-use applies to such documents in the same manner as any other administrative document.618 There is no specific framework or rules at national level. 619

Q14. Charging by Cultural Heritage Institutions (Article 6(4))

(a) Does national law (or case law or guidance) clarify how the concept of “reasonable rate of return” should be applied by cultural heritage institutions?

No.

618 See also Q6, Q7 and Q8. 619 See: Official publication of the Ministry of Culture prior to the reform: Report on Opening and Sharing of Cultural Public Data for a Digital (r)evolution in the Cultural Sector, Camille Domange, 2013; and the Ministry of Culture platform for opening up cultural data: https://data.culturecommunication.gouv.fr/pages/home/.

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Is there an obligation to publish? Is there a national register? How is the making transparent and public of such arrangements controlled, and by whom? Does national law (or guidance) provide any clarity regarding what “reviewing” the duration of exclusivity (under Article 11(2a)) actually entails in practice? The issue of digitisation of cultural resources was put forward in 2009 as part of the launch of a large loan granted to various cultural actors. Thus, in 2011, the State signed, with the companies holding catalogues (Euracorp, Gaumont, Pathé, SND, Studio 37, StudioCanal, TF1 Droits Audiovisuels, SACD, Cinémathèque française), an agreement concerning the financing of the digitisation of cinematographic works, estimated at 100 million euros. After funding was made available, several cultural actors then entered into public / private partnerships to digitise their collections (e.g. the BNF: ProQuest (digitisation of old books), Believe and Memron (digitisation of funds of 78rpm disks)). However, the agreement with ProQuest has led to criticism, in particular, because it indirectly has an impact on the cost of digitisation for re-users, while in other European countries access is free. The National Cinema and Animated Image Centre supports digitisation by putting in place a mechanism for heritage works of silent films and short films, as well as films that need to be restored. Furthermore, some actors (the National Union of Publishing, Hachette) in the cultural sector have signed agreements with Google. The agreements concluded concern unavailable French works to which one of the actors has the rights. The agreement with Hachette ended in 2016. However, the law on the re-use of public sector information does not contain any specific provisions on such digitization. With regard to the dissemination of digitised copies, Article 4 of the Valter Law provides that “a copy of the digitized resources and associated data shall be handed over free of charge, in an open and freely reusable standard, to [public or private persons exercising a public service mission] (...) which granted the right of exclusivity”.

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Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) There is an obligation to respect an open standard, Article L 300-4 Code des relations entre le public et l’administration. In order to do so, reference should be made to the general reference framework for interoperability that is required for all administrations.620 Furthermore, it should be noted that the notion of standard has been preferred to that of format as stated in the PSI Directive. The notion of standard is more precise and was defined by the Law of 21st June 2004 on confidence in the digital economy (Law Pour la confiance dans l’économie numérique”, Article 4) – it is more generic and is assumed to be used by a wider community. “disproportionate effort” (Art 5(2)) Converting documents to open standard is an automated processing of common use. The term is thus irrelevant.

620 Ordinance of December 8, 2005; Decree No. 2007-284 of 2 March 2007.

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▪ published online in their original, unmodified form to ensure timely No, even if it is in the spirit to publish Reference Data (term used by release the Loi pour une République Numérique) with a high level of quality and access. See below. The Law our la croissance, l'activité et l'égalité des chances économiques” (or Loi Macron) in its Article 4 specifies that “data on regular public transport services and mobility services are available immediately and free of charge”. The implementing decree will specify the implementation of this obligation and, in particular: the level of availability (e.g. the rate of diffusion) and the reasonable time for disseminating data in real time. Nevertheless, the publication of the decree has recently been suspended until the adoption of the Loi d’Orientation des Mobilités (Mobility Orientation Law), which aims to comply with the delegated act of the European regulation of May 31st, 2017. Actually, this decision of the government leaves stakeholders more margin for manoeuvre. They have the possibility to write codes of conduct, guidelines or approved protocols that could derogate from the decree. These documents define the terms for applying the immediacy requirement. Only two codes of conduct have been approved so far and others are under examination. ▪ published and updated frequently at the highest possible level of Yes, at least for default open data: for this reason, there is an granularity to ensure completeness and accuracy ambiguity. Some consider that the Article L 312-1-1 of the CRPA also constitutes an obligation to update regularly the databases and data

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presenting economic, social, health and environmental interests. Others interpret this Article as only regularly updated databases and data are subject to the default Open Data requirement. In any case, the aforementioned Article implies the publication of data updates.

Obligations for “baseline data” have also been strengthened. “Baseline data” is a category of data which can be defined to be part of a public service with a high level of quality. The data considered as baseline data are defined by decree. The decree of June 14th, 2017 specifies the quality criteria that have to be respected such as the publication of updates. This publication must take place according to a periodicity defined by the decree which varies according to the dataset concerned. ▪ published and maintained at a stable location, preferably on the Not in the general regime, but there are similar constraints regarding highest organisational level within the administration, to ensure reference data (see order of June 14th, 2017). The reference data are easy access and long-term availability published on the portal data.gouv.fr which aims to gather all open public data. In this context, Etalab (see Q2) is responsible for the implementation and governance of these data. It ensures the completeness of the data. In addition, the decree of June 14th, 2017 specifies that the organizations in charge of reference data strive to guarantee 99.5% availability (monthly) of data via a programming interface. They “make sure to adapt the performance of the service to meet the expectations of users”. Therefore, it is simply an obligation of means and not of result.

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▪ published in machine-readable and open formats (CSV, JSON, XML, Yes (see (b) in the table). RDF, etc.) to enhance accessibility ▪ described in rich metadata formats and classified according to - Regarding the general regime, the metadata in question standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate concerns: searching and interoperability ◦ the technical characteristics of the support when a document is communicated in an electronic format (Article R 311-10 of the CRPA). ◦ the sources and the date of the last update of the public information must be mentioned (article L 322-1 of the CRPA). - Regarding reference data, the following metadata must be published: source and date of last update, data title, description of data, periodicity of data availability, format, geographical coverage, license, keywords. - This is also the case with regard to mobility data (Article 4 of the Macron Law). ▪ accessible as data dumps (massive outputs of data) as well as The Government offers an API on data.gouv.fr and is building more through application programming inter faces (APIs) to facilitate sectorial APIs (for instance, dedicated to mobility data). automatic processing ▪ accompanied by explanatory documents on the metadata and No. controlled vocabularies used, to promote the interoperability of databases ▪ subject to regular feedback from re-users (public consultations, It depends on the platform (it is feasible on data.gouv.fr). comments box, blogs, automated reporting, etc.) to maintain quality over time and promote public involvement

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In order to facilitate the reuse of PSI, administrations must make available to users a directory containing the public information contained in the main documents they produce or hold (article L 322-6 of CRPA). The directory does not have to include the full list of existing documents and leaves the administration a margin of appreciation (CADA, April 27, 2006). Furthermore, it is necessary to list the information contained in the documents, which can be problematic to identify, by taking into account the existing directories as well as the interest of the re-users. The objective pursued is to enable re-users to easily identify the information; as a result, within the directory, public information is classified by nature. For each of these categories, the corresponding documents are listed. Thus, for each of the listed documents, the directory must specify: the exact title, the object, the date of creation, and the conditions of its reuse. In case of an update, this must be mentioned in the directory. The CADA law introduced the obligation to make this directory available to users, while on the basis of the Law (Loi pour une République numérique) administrations have to publish an updated version of the directory each year so that all users can access it. Hence, Article 13 of the mentioned law has widened the obligation. However, there are no provisions on multilingual research of documents.

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? Yes, in both cases where the exemption from the principle of free admission by default is provided: - Article L 324-1 of the CRPA “the total revenue of the amount of this charge, evaluated over an appropriate accounting period, does

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not exceed the total amount of the costs relating to the collection, production, making available to the public or dissemination of their public information” - Article L 324-2 of the CRPA “the total revenue of the amount of this charge, evaluated over an appropriate accounting period, does not exceed the total amount of the costs of collection, production, provision or dissemination, retention of their information and acquisition of intellectual property rights” (for digitalization operations). However, there is no reference to a reasonable return on investment. In fact, these provisions relating to fee calculation methods are inapplicable in practice. The basis for calculating charges should apply only to the costs of broadcasting outside the public service.

Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2) (a) of the PSI Directive?

Decree No. 2016-1036 of July 28th, 2016 specified the scope of the exception. It clarifies that the administrations concerned by this derogation are public or private persons exercising a public service mission “whose main activity is the collection, production, provision or dissemination of public information, when the cost of this main activity is less than 75% covered by tax revenue, endowments or grants”. However, some organizations are making sure that their Open Data costs do not decrease in order to still benefit from the derogation. Indeed, the costs especially in terms of hosting could be reduced by going through the cloud.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2) (b)? (I.e. to which entities it applies and how).

This exception has not been implemented in the French law and there is no administrative practice clarifying it (because such situation seems not to exist in France).

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Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

Decree No. 2016-1036 of 28 July 2016 on the principle and modalities for setting fees for the reuse of public sector information was enacted. In this regard, it should be noted that the Commission for Access to Administrative Documents (CADA) is particularly attentive to its criteria. It is assumed that the dedication of the principle of free by default, will lead the CADA to ensure even more rigorous application of these principles.

The provisions of the CRPA seem contradictory on this point; on the one hand, some of them specify that the silence kept by the administration - initially seized, even when it does not hold the document - is regarded as an implicit decision of refusal if within one month of receiving a request, it did not reply (articles R 311-12 and R 311-13 of the CRPA). 621 On the other hand, article L 311-14 of the CRPA states that: “any decision refusing access to administrative documents shall be notified to the applicant in the form of a reasoned written decision indicating the means and deadlines for appeals”. The reasoning provided in the refusal is regarded as the grounds for refusal. Moreover, the explicit refusal decision does not have to mention the deadlines applicable to contentious appeals.622

621 See: Conseil d'Etat, October 16, 2014; Ministry of Economy and Finance v. ADIFE, Nos. 365058 and 365063, Lebon T.666. 622 See: Conseil d'Etat, July 11, 2016, CH Louis-Constant-Fleming, No. 391899.

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These provisions contradict each other. However, to the extent that the first provisions are of a regulatory nature while the latter are of a legislative nature, the latter should take precedence over the former, but the CADA places them on the same level and recognizes that the decision to refuse can be both implicit and express. This seems prejudicial to the citizens, given that unlike express decisions, tacit decisions do not have to be motivated.

Q24. Article 4(4) sets out the requirement for an impartial redress scheme at national level. In respect of the redress scheme at national level: How does the appeal system work? Is this clear from the national law transposing the Directive? In the event that a new body is established in order to deal with appeals, is the manner in which that body operates clear from national law? Are there any time limits related to appeals? For example, must the redress board come to a decision within a certain time period etc.? From the refusal decision, the applicant has a period of two months to submit the CADA (article R 311-5 of the CRPA). In the event of an implicit decision of refusal, the two months period runs from the acknowledgment of receipt of the request, sent by the administration and even though the interested party would have not been informed of the ways of appeal.623 Furthermore, in case of an express or tacit refusal, if the two months have elapsed and the applicant has not made any administrative appeal, it is always possible to make a new request for communication to the administration. Furthermore, a refusal may open the possibility for the applicant to seize the CADA. The Commission for Access to Administrative Documents (CADA) is the authority in charge of the administrative appeal. In this context, it gives opinions that are not binding, but referral to it is mandatory prior to litigation. At the same time, it has sanctioning powers, in particular against public information re-users who do not comply with the legislative requirements (Articles L 326-1 and L 342-3 of the CRPA). Furthermore, the CADA is entitled to carry out on-the-spot investigations (Article R 343-2 of the CRPA).

623 Conseil d’Etat, July 11, 2016, CH Louis-Constant-Fleming, No. 391899, CADA, July 4, 2013, RATP, No. 20131479.

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The CADA is an independent administrative authority (Article L 340-1 of the CRPA): “an institution of the State that does not have legal personality (which is) charged with of one of the following three missions: to protect the rights and freedoms of citizens, to ensure the proper functioning of the Administration in its relationships with citizens or to participate in the regulation of certain sectors”.624 The independence of the independent administrative authorities in France is often criticised as “they act in the name and on behalf of the State”. This criticism of the independence of the CADA came from its composition (article L 341-1 of the CRPA).625 In addition, the CADA is currently facing several challenges: - this institution lacks resources for the new flow of requests that have been observed since the enactment of the Loi Valter and Loi pour une République Numérique. In this respect it should be noted that the majority of requests concern the implementation of the right of communication - more specifically documents relating to the applicant - and not Open Data by default. However, requests made for Open Data by default are subject to wider media coverage, which contributes to public awareness of the subject; - the complexity of the general system of openness of public data and special regimes means that it has not been easy to decide for or against openness and this slows down the functioning of the CADA further. In this respect, the revision of the directive would be an opportunity to bring greater clarity and to propose better harmonization; - the predominance of legal expertise within the institution.

624 Fiche d’orientation, autorité administrative indépendante, Dalloz, Septembre 2017. 625 http://www.cada.fr/la-cada,3.html.

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No.

Q26. Are there any national rules (or case law) requiring entities, not being a “body governed by public law” as referred to under Article 2.2a of the PSI Directive to share data with public bodies? These could be entities of commercial and industrial character or entities operating under public services concession (delegation) contracts. If so, please indicate: Which entities do these rules apply to and how are these entities defined? Which types of data do the rules apply to? For example, data with some sort of societal value? On what basis they are required to share? For example, because the data was gathered in the context of activities funded by the government in some way (such as grants, procurement contracts, or concessions granted to the private entity). 1. The reuse of public sector information produced or received as part of a public service mission of an industrial or commercial nature is subject to the general regime. On the basis of the Law (Loi pour une République numérique), all public or private persons exercising a public service mission are subject to the ordinary regime in terms of access and reuse of information. The objective of the law was to harmonize the provisions because Article L 300-2, which defined the concept of administrative documents, included not only the documents issued by a public administration (“SPA”) but also the ones coming from a public service of an industrial or commercial nature (“SPIC”). Moreover, since the order No. 2005-650, re- use has been free of charge whether for commercial or non-commercial purposes, the principle of free reuse of information did not apply to information coming from SPIC documents; therefore, these documents were in a sort of hybrid or incoherent regime. All information contained in the documents produced or received by an administration, referred to in Article L 300-2 as part of a public service mission of an industrial or commercial nature, were excluded. However, this has changed as provided for the CRPA, Articles L 311-5 and L 311-6.

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This principle set out in the Loi pour une République numérique is essential for the opening up of cultural data as, many cultural organizations in France carry out a SPIC mission (e.g. Réunion des Musées Nationaux and the Grand Palais des Champs-Elysées). The same logic applies to research organisations. The only remaining difference concerns sui generis rights (Article L 321-3 of CRPA): databases produced or received by administrations in the exercise of a public service mission of an industrial or commercial nature subject to competition may hinder opening up of the data. For the definition of public service of industrial or commercial character, see Q27. 2. The opening up of essential data of public contracts and concession contracts For each public contract exceeding € 25,000 (Ordonnance No. 2015-899 of July 23, 2015 relating to public procurement, Decree No. 2016- 360 of March 25, 2016 relating to public procurement) or concession contract (Loi Macron, Ordonnance of 26 January 2016, Decree of February 1, 2016), public purchasers must publish online, on their “buyer profile”, the essential data of these contracts. These specific data on public contracts or concession contracts are exhaustively listed in the decree of April 14, 2017. Two categories of data can be identified: - data related to the conclusion of the contract; - data related to the modification of the contract.

Furthermore, a third category of data, data related to the performance of the contract, is subject to these provisions as regards concession contracts. The concessionaire is required to provide the licensing authority with data and databases produced or collected during the exercise of a public service, the execution of the concession contract, except decisions based on grounds of general interest (Loi pour une République numérique) as long as they are indispensable for the operation of a public service. Once data has been transmitted in digital format in an open standard, the licensing authority may freely dispose of it, including distributing it free of charge to the public. The opening of these data must correspond to the ten main principles of data openness. The principles are: completeness, primacy, timeliness, ease of physical and electronic access, machine readability, non-discrimination, use of commonly owned standards, licensing, permanence and usage costs. 3. The opening of data of general interest

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The Loi pour une République numérique provides the opening up of certain data which belong to private entities, because they are considered as data of general interest (Articles 17 - 24 of the CRPA). These include:  data on political figures’ responses reported in newspapers and newsletters, magazines and other programs broadcasted from radio and television services;  essential data of subsidy contracts (public and private persons carrying out public service missions are responsible for opening these data);  court decisions;  maximum speed data. Although, they do not belong to the category of data of general interest, the opening of mobility data follows that logic. This movement in favour of opening up data held by private entities will develop in the years to come. Moreover, whether it concerns the opening of SPIC data, or data of general interest (of which concession contracts are part of), some organisations justify the refusal of opening up data by invoking business secrecy. This approach has been validated by the CADA since all the requests to open the data of the concession contracts were rejected because of the secrecy of the businesses. As such, the concept of business secrecy would tend to be interpreted in a more restrictive way.

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition? The CRPA does not explicitly refer to the definition of “bodies governed by public law” and includes organisations beyond the scope of the PSI Directive as EPIC (Etablissement public à caractère industriel et commercial) and private law entities with a public service mission. The CRPA simply repeats the definition of “public sector bodies” and does not expressly include the criteria applicable to “bodies governed by public law” as provided for by the Directive, but they are indirectly included through the definition of a public establishment having an

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administrative character (SPA). The definition includes the following requirements: - “body created specifically to satisfy needs of general interest which have a character other than industrial or commercial”: institution managing a SPA. It has to be a public service according to the law. According to the JP: the judge presumes that it is a SPA then this presumption may be rebutted if considering the purpose of the service, its method of financing and its organizational and operational arrangements, it appears to be a SPIC. The reasoning is based on clues;626 - legal personality; - financing and control. This shows that all entities covered by the Directive are included in the definition. The enforceability of the open data regime is more extensive because in French law public institutions of an industrial and commercial nature are included as well as private law bodies with a public service mission. It should be pointed out that the SPIC differs from the public administrative service, according to the jurisprudence of the Conseil d’Etat627, by the combination of three characteristics that make it related to a company: the purpose of the service, the source of the resources and the arrangements for its organisation and functioning. SPIC missions can be carried out by a public institution (EPIC) and / or by a private institution. EPICs are largely governed by private law.

626 CE, Ass, November 16, 1956 Union Union of the Aeronautical Industries, EC, sect, January 26, 1968, Dame Maron. 627 CE Ass., November 16, 1956, Union syndicale des industries aéronautiques.

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data concerned?

No such issues have been raised. Nevertheless, these are subjects on which Open Data France feels particularly concerned, therefore they try to make a collective response to these bilateral requests. Surely, through Open Data France, French communities have made a joint response to companies wishing to access their mobility data (Google, Here, TomTom, etc.). Moreover, it seems that there is a privileged partnership agreement between Infogreffe and doctrines.fr., but this could not be verified.

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Germany Country: Germany Author: Nikolaus Forgó, Kaja Kazmierska Date: 20 December 2017

The 2003 Directive was implemented in the national legal order by enacting an Act of Parliament - Federal Act on the Re-Use of Public Sector Information (Informationsweiterverwendungsgesetz - Gesetz über die Weiterverwendung von Informationen öffentlicher Stellen, 13.12.2006, BGBl. I, S. 2913, hereinafter IWG).628 According to the information on the government’s website (the Ministry of Economy), this law did not regulate access to information in the sense of freedom of information, but was rather built on existing legal acts - such as the freedom of information acts (e.g. the federal-level freedom of information act - Gesetz zur Regelung des Zugangs zu Informationen des Bundes – Informationsfreiheitsgesetz, 05.09.2005, BGBl. I S. 2722, hereinafter IFG629) and environmental information laws (e.g. Umweltinformationsgesetz, 22.12.2014, BGBl. I S. 1643, hereinafter UIG)630 of the State and the regions (Länder).

628 http://www.gesetze-im-internet.de/iwg/index.html. 629 https://www.gesetze-im-internet.de/ifg/IFG.pdf. 630 https://www.gesetze-im-internet.de/uig_2005/UIG.pdf.

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The 2013 PSI Directive, amending the 2003 Directive, was implemented into the German legal order by amendments introduced to the existing IWG. The amendments were introduced by the Act of Parliament – The first law amending the federal act on re-use of public sector information (Erstes Gesetz zur Änderung des Informationsweiterverwendungsgesetzes, 08.07.2015, BGBl, I Nr. 29 S. 1162).631 This law does not regulate access to information, merely its re-use. The right to access information is explicitly excluded from the scope of IWG in Paragraph 1(2a) and is regulated by different acts, such as the IFG, mentioned above. There are still states in which there is no freedom of information act, such as Lower Saxony. The government has not introduced any guidelines that would clarify the implementation measures. However, some information relating to the scope and justifications to the introduced amendments can be found in the Bundestag document: BTDrucksache 18/4614 regarding the federal government’s draft of the new IWG law.632

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

The Federal Minister for Economy and Energy (Bundesministerium für Wirtschaft und Energie) - as specified by the German Chancellor Angela Merkel in the cover letter to the draft law submitted to the German President.633 The amendments were introduced by an Act of Parliament (see above).

631 https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=//*%255B@attr_id=%27bgbl115s1162.pdf%27%255D#__bgbl__%2F%2F*%5B%40attr_i d%3D%27bgbl115s1162.pdf%27%5D__1511432859095. 632 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, especially pp.11-17.

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To which data do the respective legal instruments apply? National rules implementing the PSI Directive apply to the re-use of information held by public authorities, in particular for the provision of products and services of the digital economy (Article 1(1) IWG). National rules implementing the INSPIRE Directive apply to access and use of geodata, geodata services and metadata, in particular measures that may have an impact on the environment (Article 1 Law on Access to the Digital Geodata - Geodatenzugangsgesetz 10.02.2009, BGBl. I S. 278, with later amendments, hereinafter GeoZG634). Therefore, the scope of the data covered under the PSI Directive is broader than the scope of data covered under the INSPIRE Directive. To whom do the respective legal instruments apply? The national rules implementing the PSI Directive apply to public sector bodies, defined as (Article 2(1) IWG): a. Federal public authorities, including their special funds; b. Other legal entities of public and private law, established for the particular purpose of fulfilling non-commercial tasks in the general interest, if they are financed / supervised / controlled by entities falling under (a) or (c); c. Associations whose members fall under (a) or (b). The national rules implementing the INSPIRE Directive apply to (Article 2(1-4) GeoZG): a. Geodata-holding agencies of the federal government and the federal legal entities of public law; b. Private individuals and legal entities under private law may provide geodata and metadata on the geoportal if they commit to providing

633 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p. 3. 634 https://www.gesetze-im-internet.de/geozg/BJNR027800009.html.

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geodata and metadata in accordance with the provisions of the specific law and adhere to the technical conditions; c. Spatial data services referring to data contained in the spatial data to which the relevant laws apply; d. In the exclusive economic area and off the Continental shelf (according to the provisions of the UN Convention on the Law of the Sea of 10/12/1982). Thus, there are some differences with regard to the scope. For example, the laws transposing the INSPIRE Directive may under some circumstances apply to private individuals, whereas the PSI regulations do not. However, there is a significant degree of overlap. Therefore, most bodies to whom the INSPIRE regulations apply will also be bound by the PSI regulations. Please note the above holds true at national level – the regional level legislation has not been examined here.635 Moreover, as it is explained in Bundestag document BTDrucksache 18/4614636, the laws implementing the INSPIRE Directive (Geodata) in Germany take priority over the IWG as special statutory provisions.

635 For an overview of the legislation on the free access to information at regional level, please see the list of acts introduced to date by various regions – Laender: http://www.bmub.bund.de/themen/umweltinformation-bildung/umweltinformation/zugang-zu-umweltinformationen/uebersicht-der-geodatenzugangsgesetze-der- bundeslaender/. 636 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p. 12.

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As is explained in Bundestag document BTDrucksache 18/4614637, the laws implementing the INSPIRE Directive (Geodata) in Germany take priority over the IWG as special statutory provisions. In the negotiations on the amendment of the PSI Directive, Germany urged that such provision be included in the text of the Directive. In the end, Member States are required to clarify the relationship in their national implementation. According to the laws implementing the INSPIRE Directive, the further use of information recorded there is in no way restricted. The GeoZG regulates this expressly in Article 11(1). Moreover, new definitions were added in Article 2(5-7) IWG in order to facilitate the interoperability in accordance with the principle of compatibility and the usability requirements for spatial data, as established in the legal provisions implementing the INSPIRE Directive. The new definitions introduce “machine-readable format” (maschinenlesbares Format), “open format” (offenes Format) and “recognised open standard” (anerkannter offener Standard). These definitions transpose the PSI Directive in a literal way. As the PSI Directive specifies (Recitals 20 and 21), public authorities should facilitate the re-use of data also from a technical point of view. This includes providing the information in open, machine-readable formats with the associated metadata in the highest possible precision and granularity.638

637 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p. 12. 638 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p. 13.

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According to Article 6 IFG, access to trade or business secrets may only be granted as an exception and upon consent of the person concerned. It needs to be examined and justified by the relevant public authority on a case-by-case basis whether and why an exception exists. Chapter 6 of the Law on Copyrights and related rights (Urheberrechtsgesetz, 09.09.1965 with later amendments, BGBl. I p.1273, hereinafter UrhG)639 provides for numerous limitations to copyright protection. Article 52a UrhG provides for conditions under which works should be available to the public for instruction and research, and Article 52b regulates communication of works at terminals in public libraries, museums and archives. According to Article 52a, it shall be permissible to make the following works available to the public, to the extent that this is necessary for the respective purpose, and is justified for the pursuit of non-commercial aims: 1. published small, limited parts of a work, small scale works, as well as individual articles from newspapers or periodicals for illustration in teaching at schools, universities, non-commercial institutions for education and further education, and at vocational training institutions, exclusively for the specifically limited circle of those taking part in the instruction, or 2. published limited parts of a work, small scale works, as well as individual articles from newspapers or periodicals exclusively for a specifically limited circle of persons for their personal scientific research. It shall be permissible, in the cases above, to produce copies needed for making the work available to the public. Moreover, making a work intended for use in instruction in schools available to the public shall in all cases be permissible only with the consent of the copyright owner. Making a cinematographic work available to the public, before the expiration of two years from the beginning of normal regular utilisation in film theatres, shall in all cases be permissible only with the consent of the rights holder. According to Article 52b UrhG, so far as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the stocks of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant institution at terminals dedicated to the purpose of research and for private study. In principle, reproduction of a work in excess of the number stocked by the institution shall not be made simultaneously available at

639 https://www.gesetze-im-internet.de/urhg/index.html.

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such terminals. Equitable remuneration shall be paid in consideration of their being made available. The claim may only be asserted by a collecting society.

Article 4 UrhG foresees a protection of database works. Collections of works / data / other independent elements which by reason of the selection or arrangement of the elements constitute the author’s own intellectual creation are protected as independent works without prejudice to an existing copyright or related right in one of the individual elements. The sui generis right on databases stems from Article 87b UrhG, under which the producer of a database is protected. The UrhG also provides for restrictions in exercising database rights. According to Article 87c, the reproduction of a substantial part of a database shall be permissible: 1. for private use – yet only if its elements are not accessible individually by electronic means, 2. for personal scientific use if and insofar as the reproduction is justified for that purpose and the scientific use does not serve commercial purposes, 3. for the purpose of illustrative teaching insofar as this does not serve commercial purposes. Moreover, in the cases referred to in numbers 2 and 3, the source shall be clearly indicated. Moreover - according to Article 5 UrhG - Acts, statutory instruments, official decrees and official notices, as well as decisions and official head notes of decisions do not enjoy copyright protection. The Administrative Court for the region of Baden-Württemberg in the judgement of 07.05.2013 Az 10 S281/12 decided that this provision should analogically be applied to official databases as well.640

640 https://openjur.de/u/631314.html.

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According to Paragraph 6 IFG, existing intellectual property rights preclude the right to access information. Therefore, intellectual property, business and trade secrets are protected absolutely. If it is not clear whether intellectual property is affected, the third party must be involved, according to Paragraph 8 IFG. The mainly relevant limitation to copyright is the right to quote (Article 51 UrhG). However, its scope is limited. The copying, distribution and public reproduction of a published work as a quotation is permitted, provided it is justified by the specific purpose. There is no specific rule on research data per se in UrhG, as data per se is not copyright protected.

Q8. Are there any national rules that regulate or affect the access and re-use of data held by public research and educational institutions (which are currently excluded by Article 1.2 (e) of the PSI Directive)? Please describe (if so). As already mentioned above (Q5), according to Article 52b UrhG, so far as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the stocks of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant institution at terminals dedicated to the purpose of research and for private study. In principle, reproduction of a work in excess of the number stocked by the institution shall not be made simultaneously available at such terminals. Equitable remuneration shall be paid in consideration of their being made available. The claim may only be asserted by a collecting society.

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Moreover, according to Article 54c UrhG, where appliances for reproduction by means of photocopying or by some other process having a similar effect, are operated in schools, universities, vocational training institutions or other educational and further education institutions, research institutions, public libraries or in institutions which keep appliances available for making photocopies in return for payment, the author shall be entitled to payment of equitable remuneration also from the operator of the appliance.

III - Data Protection Rules

According to Paragraph 1(3) IWG, the provisions on the protection of personal data and further claims under other legislation for the re-use of public sector information remain unaffected.

According to Paragraph 5 IFG, personal data are protected in principle. The person concerned shall be informed about the request. If they agree to the disclosure of their data, the access to information is granted. Otherwise, the relevant authority needs to decide whether the right to access of information shall prevail over the protection of personal data. Moreover, according to Paragraph 5(1) IFG in conjunction with Paragraph 3(9) Federal Data Protection Law (Bundesdatenschutzgesetz, 20.12.1990, with later amendments, BGBl. I S. 66, hereinafter BDSG641), sensitive personal data may only be transmitted if the third party has expressly consented. These types of personal data include information about racial and ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual life. Moreover, the position of Federal Commissioner for Freedom of Information is performed by the Federal Commissioner for Data Protection, Paragraph 12(2) IFG.

641 https://www.gesetze-im-internet.de/bdsg_1990/BDSG.pdf.

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Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is Not discovered whilst conducting this research. made available for re-use The obligation to anonymise or pseudonymise PSI containing personal According to Paragraph 3(a) BDSG, the collection, processing and use of personal data and the selection and design of data processing data before making it available for re-use (possibly including methodologies or procedures for pseudonymisation or systems shall be geared towards the goal of collecting, processing or anonymization) using as little personal data as possible. In particular, personal data must be anonymised or pseudonymised, as far as this is possible according to the intended use and does not require disproportionate effort in relation to the intended protection purpose. This applies also to PSI-related purposes, as according to Paragraph 1(3) IWG, the provisions on the protection of personal data and further claims under other legislation for the re-use of public sector information remain unaffected. The obligation to conduct a data protection impact assessment or a There is no specific rule on this. However, a PIA needs to be similar risk assessment before making PSI containing personal data conducted according to general data protection rules - in so far as available for re-use automated processing operations involve risks for the rights and liberties of the data subject, they are subject to examination prior to

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the start of processing (prior checking). Prior checking is to be carried out under the responsibility of a data protection officer, in particular when sensitive data are to be processed or the processing of personal data is intended to appraise the data subject's personality (Paragraph 4(d)(5), (6) BDSG). The obligation to include data protection provisions in licenses for re- There are no specific rules on this, but general data protection rules use of PSI containing personal data (e.g. including restrictions on the apply, such as the purpose binding principle, in particular Paragraph purposes of use of the PSI to ensure compatibility with the original 16 (4) BDSG: “The third party to whom the data are transferred may purposes) process or use the transferred data only for the purpose for which they were transferred to him. The transferring body shall point this out to him. Processing or use for other purposes shall be admissible if transfer under sub-Section 1 above would be admissible and the transferring body has consented.”

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis? Documents for which citizens or companies need to prove a particular Yes. Paragraph 1(2) (2) IGW states it does not apply to documents for interest to obtain access the access to which a legal or justified interest needs to be proven. Documents relating to national security, statistical confidentiality or No. However, there is no right to access to this data – please see commercial confidentiality Paragraph 1(2a) IWG in conjunction with Paragraph 3(1) (b), (c) IFG. Documents the supply of which is an activity falling outside the public Yes. As specified in Paragraph 1(2) (3) IGW. task Documents containing personal data No. However, there is no right to access to this data – please see

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Paragraph 1(2a) IWG in conjunction with Paragraph 3(1) (b), (c) IFG. Documents held by educational and research establishments (other Yes. As specified in Paragraph 1(2) (6) IGW. than university libraries) and documents held by cultural establishments other than libraries, museums and archives Documents held by public service broadcasters and their subsidiaries Yes. As specified in Paragraph 1(2) (5) IGW. Documents for which 3rd parties hold intellectual property rights Yes. As specified in Paragraph 1(2) (4) IGW.

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

According to Paragraph 2(a) IWG, which defines the principle of re-use, information that falls within the scope of the IWG may be re-used. Re-use itself is defined in 2(3) IGW as any use of information for commercial or non-commercial purposes beyond the bounds of public-sector duties. Intellectual perception of information and use of the resulting knowledge often do not constitute re-use. According to Paragraph 1(2a) IGW, the claim for access to information is not justified under this law. IGW regulates solely the re-use of information, whilst access to information is regulated in the IFG. IFG only applies to public authorities acting on the federal level. According to Paragraph 1 of the IFG, everyone is entitled to official information held by the federal authorities. For other federal organs and institutions this law applies so far as they perform public-law administrative tasks. Regional (Landes) public authorities are subject to the regional freedom of information acts, enacted separately by the regions (Länder) themselves. As mentioned above, not all the regions have introduced freedom of information acts yet. The regional law applies to the regional authorities even when they perform activities stemming from the federal law.

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According to Article 2a IGW, for information to which libraries, including university libraries, museums and archives hold copyright, related rights or related commercial property rights, the IGW shall apply only insofar as its use is admissible in accordance with the regulations applicable to these protection rights, or if the institution has authorised its use. The conditions of use shall comply with the requirements of this Act. However, if these institutions hold intellectual property rights to the information in question, the requirements of the law apply only if they allow the re-use. This is due to the fact that the documents for which third parties hold intellectual property rights are excluded from the scope of IWG, by virtue of Paragraph 1(2)(4) IWG. Regarding the access to information, as mentioned above, according to Paragraph 52b IGW, as long as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the stocks of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant institution at terminals dedicated to the purpose of research and for private study. In principle, reproduction of a work in excess of the number stocked by the institution shall not be made simultaneously available at such terminals. Equitable remuneration shall be paid in consideration of their being made available. The claim may only be asserted by a collecting society.

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Q14. Charging by Cultural Heritage Institutions (Article 6(4)) (c) Does national law (or case law or guidance) clarify how the concept of “reasonable rate of return” should be applied by cultural heritage institutions?

No. The Directive is transposed in a literal way, and the relevant Article 5(4) IWG uses the term “reasonable return on investment”. No further clarification is provided.

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entails in practice?

Article 11 of the PSI Directive has been transposed in a literal manner in Article 3(a) IWG. No information regarding the organisation of exclusive arrangements has been found in the course of this research. Culture is predominantly organised at the regional level. As a result, there are numerous initiatives in the individual regions. At the federal level, the German Digital Library (DDB)642 is the biggest digital cultural resource database. According to its own website, the DBB is Germany’s central, national portal for culture and science. The portal, wholly organised and funded by the public sector, has the ongoing aim of linking up the digitised inventories of Germany’s cultural and scientific institutions and making them available to the public. The DDB is the national data aggregator for Europeana. The DDB is a network of the cultural and scientific institutions in Germany. It enables and encourages them to network, cooperate, and to develop and use services and innovative tools. This makes possible, in particular, new and more effective forms of presenting, managing and processing digitised contents.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) Article 3(2) IWG specifies: “where possible, and where it involves no undue expense to the public-sector body”. “disproportionate effort” (Art 5(2)) The law itself does not clarify this. No guidance has been found.

642 https://www.deutsche-digitale-bibliothek.de/.

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(q) published online in their original, unmodified form to ensure Paragraph 8 IWG requires that where information takes the form of timely release data accompanied by metadata within the meaning of Section 12(1) of the E-Government Law (E-Government Gesetz, Gesetz zur Förderung der elektronischen Verwaltung, 25.0.2013, BGBl. I S. 2749, hereinafter EGovG)643 and has been provided via public networks in machine-readable format, the metadata shall be made available on a national data portal.

According to Article 12a(1) E-Government Law, the authorities of the federal administration are obliged to provide unprocessed data which they use to fulfil their public service duties or which they received through / on behalf of third parties via publicly accessible networks. Article 12(6) further specifies that such data should then be provided to anyone free of charge, for unrestricted re-use.

643 http://www.gesetze-im-internet.de/egovg/EGovG.pdf.

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(r) published and updated frequently at the highest possible level Public sector information is published on the government’s dedicated of granularity to ensure completeness and accuracy GovData Portal.644 A prerequisite for inclusion on the GovData portal is that clear and comprehensible terms of use have been established for a data set.645 These facilitate the use of data and documents. Therefore, for all records and documents it must be clearly defined under which conditions they may be used. On its website, the GovData states its Business and Coordination Office will increasingly pay attention to the quality of the data records, and point out and react to errors in the metadata or to non- functioning links. Moreover, data providers have the opportunity to regularly check the quality of the data records through a reviewer scheme.

(s) published and maintained at a stable location, preferably on GovData is an application of the IT Planning Council. Responsible for the highest organisational level within the administration, to the portal is the Business and Coordination Office GovData, whose ensure easy access and long-term availability seat is in Hamburg. The basis for the operation of GovData is defined in an administrative agreement. The administrative agreement has so far been joined by the federal government and 11 regions.646

(t) published in machine-readable and open formats (CSV, JSON, As mentioned above, Section 12(1) of the E-Government Law requires

644 https://www.govdata.de/. 645 https://www.govdata.de/web/guest/faq. 646 https://www.govdata.de/web/guest/faq.

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XML, RDF, etc.) to enhance accessibility that data accessible via public networks is provided in machine- readable format. However, this is not always the case. It is explained in the Q&A section of the GovData Portal that although an important criterion for "Open Data" is that the corresponding data is machine-readable and is also available in unprocessed form (i.e. as "raw data"), in practice many administrative institutions do not meet these criteria at the moment. Hence, in order to still be able to provide a lot of data, the GovData portal decided to include data that does not meet all criteria for "Open Data".647 However, preferably, data should be provided in formats that rely on open standards and allow machine readability. For tabular data, for instance, these are CSV or XML. Furthermore, according to the website of the GovData Portal, for Open Data, in Europe and America the metadata structures of CKAN (Comprehensive Knowledge Archive Network) have been used. CKAN is the de facto standard for data catalogue software for Open Data. CKAN exchanges metadata in JSON format. The only required field is the name, which should be readable for the user and URL-friendly; all other fields are optional. The core fields include title, description, resources (data files or data services), license and contact. Further information may be provided as a JSON dictionary, stored as nested key-value pairs. This emphasis on the essentials, together with the

647 https://www.govdata.de/web/guest/faq.

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high level of flexibility, is the reason for the wide use of this metadata model. In the course of the development of Open Data, however, the desire for more connectivity emerged: many data providers and developers wanted to have it defined which information is where and in which form. In order to preserve the minimal, flexible character of CKAN and JSON while at the same time clearly defining what the metadata for GovData should look like, the JSON scheme for Open Government Data (OGD) was developed. 648

(u) described in rich metadata formats and classified according to The OGD metadata structure is maintained on the code sharing / standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to storing / developing platform GitHub.649 It is not only intended as a facilitate searching and interoperability tool to determine valid metadata, but rather as a means of communication for interested parties such as public decision makers, data providers, developers and other Open Data initiatives in German- speaking countries. The early release in the beta stage and the publicly traceable developments on GitHub also serve these purposes. The metadata structure, which supports the description of datasets (including data services), documents and applications, is constructed as follows: the most important properties are stored at the top level. These include: Title, Identifier, Description, Responsible and Terms of Use. Another essential element is the list of resources, i.e. the actual

648 https://www.govdata.de/web/guest/metadatenschema. 649 https://github.com/.

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data, documents or applications. The most important property of each resource is its URL. In addition, description and format can be noted for each resource. This structure makes it possible, for example, to record contents-related files as a data record, possibly for different time periods, in different languages or formats. Within the "Extras" area, all further information is saved. These include, above all, the temporal and spatial classification, as well as information on the origin of imported entries. At present, work on the development of the existing metadata standard is progressing. 650

(v) accessible as data dumps (massive outputs of data) as well as Yes. through application programming inter faces (APIs) to facilitate automatic processing Depending on the number of data records and their own technical requirements, different variants are available for the provision of data: 1. Manual provision via a webform; 2. Automatic provision via “CKAN-API” (inter face); 3. Automatic provision via “JSON-Dump”; 4. Automatic provision by CKAN.

(w) accompanied by explanatory documents on the metadata and Only data whose descriptions are sufficiently comprehensive are controlled vocabularies used, to promote the interoperability published. For instance, the lack of a unique user specification for a of databases given record excludes it from publication.651

650 https://www.govdata.de/web/guest/metadatenschema.

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(x) subject to regular feedback from re-users (public The website of the GovData portal, in the section describing the consultations, comments box, blogs, automated reporting, metadata formats, invites users to provide comments or suggestions etc.) to maintain quality over time and promote public for improvement, as well as to ask questions.652 involvement Comments on records, documents and apps can be left on the respective detail page directly. Suggestions and tips for GovData are collected on GitHub. Questions that cannot or should not be discussed publicly, can be asked via the “Contact Us” section.653

Q18. Practical arrangements (Art 9) Article 9 of the Directive obliges Member States to certain practical arrangements. Have such arrangements been made in practice (beyond mere transposition of Article 9 into law)? Paragraph 8 IWG substantiates the practical facilitations required by Article 9 of the PSI Directive. "GovData - the data portal for Germany", which is currently being developed, represents such a practical arrangement for the further use of machine-readable data. As stated above, Paragraph 8 IWG requires that where information takes the form of data accompanied by metadata within the meaning of Section 12(1) EGovG and has been provided via public networks in machine-readable format, the metadata shall be made available on a national data portal. Therefore, as explained in the Bundestag document BTDrucksache 18/4614, data provided by public authorities on the internet shall in principle always be made available in machine-readable formats and provided with metadata, if a user interest is to be expected regarding

651 https://www.govdata.de/web/guest/faq 652 https://www.govdata.de/web/guest/metadatenschema. 653 https://www.govdata.de/web/guest/faq.

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such government data. According to Paragraph 8 IWG, the metadata of such already published government data should be made available on the national data portal. In order to be included in the metadata catalogue of the national data portal "GovData", a record must be described in a specific way. Therefore, general information (e.g. title of the data set), information on the conditions of use, the publisher, the contact person, spatial and temporal information as well as a link to the data set itself are required. The datasets themselves should not be delivered to the national data portal "GovData" nor published there, but should continue to be provided and maintained on the websites or in the databases of the respective data-retaining agency. An update of the government data itself takes place at its place of origin. The metadata to be provided to the national data portal "GovData" can only be updated / amended if they are out of date. If an authority has already published government data online with metadata, and an update of the already published metadata is required, the metadata necessary for the national data portal should be made available within a reasonable transitional period.654

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? Neither the Directive nor the IWG requires fees to be charged for the provision of information for re-use. Furthermore, public bodies which do require fees need to adhere to Paragraphs 5 and 6 IWG. However, it should not be assumed that public bodies are not allowed to charge fees for re-using information. Likewise, it should not be assumed that regulations allowing public bodies to charge fees have to be changed in the light of the amendments to the IWG. The public law fee system - in particular the prevailing cost recovery principle - remain unaffected. This follows from Paragraph 5(2)(2) IWG and is explained in Bundestag document BTDrucksache 18/4614.

654 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p. 15-16.

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Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

The restriction does not apply to public sector entities that need to generate enough revenue to cover a significant part of their costs (Paragraph 5(2)(1)IWG). An example of this are the high-quality data, which the federal government has been establishing for many years in the field of legal information. It is necessary for the use of this data to charge a reasonable fee.655

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

The public law fee system - in particular the prevailing cost recovery principle - remain unaffected in the light of the amended IWG. This follows from Paragraph 5(2)(2) IWG. Thus, the exception regarding costs arising from the reproduction, provision and dissemination of information shall not apply to public entities which, under legislation, are required to cover their costs. An example here could be the German weather service which, according to Paragraph 6 of the Law on the German Weather Service (Gesetz über den Deutschen Wetterdienst, (BGBl. I S. 2871), 10.09.1998, hereinafter DWD)656 needs to cover a significant part of its costs.657

655 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p.15. 656 https://www.gesetze-im-internet.de/dwdg/DWDG.pdf. 657 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p.14-15.

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Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

Paragraph 5(4) IGW transposes the equivalent provision of the PSI Directive literally and states that the charges shall be calculated in line with the accounting principles applicable to the public-sector bodies involved. According to the Directive, the fee calculation procedure must be objective, transparent and based on verifiable assessment criteria. However, the definition and adoption of these criteria is left entirely at the discretion of the Member States. In the first stage of the cost calculation, all the relevant costs are added. Income from the collection or creation of documents, e.g. registration fees or charges, should be deducted from the total cost in order to determine the "net cost" of collecting, producing, reproduction and distribution. The fees may need to be based on the estimated potential for re-use demand over a given period (instead of an actual number of user requests). This is due to the fact that the maximum fee is based on the total income which is not yet known at the time of calculation. As the calculation of the cost per document or record would be expensive, in order to ensure that fees are determined based on appropriate, verifiable criteria, it is important that a quantifiable output of the activities of the public sector is used as a reference. This requirement is best fulfilled by conducting the calculation on database or catalogue level. It is recommended to the public authorities to review costs and demand regularly and to adjust the fees accordingly. The "corresponding billing period" mentioned both in the Directive and in Article 5(3)IGW, in most cases can be understood as a year. The Directive requires the established fees not to exceed the profit margin in order to be "reasonable", according to Article 5(3) IGW. There is no further clarification in the law. However, as explained in Bundestag document BTDrucksache 18/4614, based on the EC public consultation, the fee could be slightly above the current cost of capital, but far below the average of a profit margin of commercially active economic operators. The profit margin of commercially active economic operators can be significantly higher due to the higher risk. Because the capital costs heavily depend on the interest rates of the credit institutions (and these in turn rely on ECB fixed interest rates for main refinancing operations), the "reasonable profit margin" should not exceed the ECB's interest rate by more than 5%.658

658 https://dip21.bundestag.de/dip21/btd/18/046/1804614.pdf, p.15-16.

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Bundestag document BTDrucksache 18/4614, page 14, explains that Germany considers that the rules on procedure are not necessary any longer as all material falling within the scope of application is re-usable. In particular, public sector bodies should not be obliged to decide on legality of re-use, in particular in light of third party rights.

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According to Article 7 IGW, the Administrative Courts have jurisdiction in disputes on the interpretation of this Act. Therefore, the general administrative law provisions would apply here. Prior to submitting a claim to the Court, an appeal against the administrative decision needs to be submitted to the authority which has issued the act / decision in question, in a so-called contradictory procedure (“Wiederspruchsverfahren”, Paragraph 68(1), 68(2) Administrative Courts Regulation (Verwaltungsgerichtsordnung, 19.03.1991, with later amendments, BGBl. I S. 686, hereinafter VwGO659)). The complaint against the administrative act / decision needs to be made in writing to the authority which adopted the administrative act / decision within one month of the communication of the administrative act / decision to the complainant (Paragraph 70 VwGO). The deadline for lodging a claim under German administrative law is one month (according to Paragraph 74 I, sentence 2, VwGO). The time is counted from the day after the announcement / publication of the challenged administrative act / decision (Paragraph 57 II VwGO in conjunction with Paragraph 222 I Civil Procedure Regulation (Zivilprocessordnung, 12.09.1950 with later amendments, BGBl. I S. 3202; 2006 I S. 431; 2007 I S. 1781, hereinafter ZPO660), and 187 I Civil Code (Bürgerliches Gesetzbuch, 18.08.1896 with later amendments, BGBl. I S. 42, 2909; 2003 I S. 738, hereinafter BGB661)). No new body was established to deal with the appeals regarding re-use of information. Claims regarding violation of the right of access to information are submitted to the German Supervisor for Data Protection and the Freedom of Information (Bundesbeauftragte für den Datenschutz und die Informationsfreiheit), according to Paragraph 12(1) IFG. However, according to Paragraph (1)2a IWG, the IWG law does not provide the right to access information (only re-use).

659 https://dejure.org/gesetze/VwGO/74.html. 660 https://www.gesetze-im-internet.de/zpo/ZPO.pdf. 661 https://www.gesetze-im-internet.de/bgb/BGB.pdf.

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Paragraph 6 IWG transposes Article 7 of the PSI Directive. In relation to public bodies, Paragraph 6(2) states that if no standard charges for re- use have been laid down, the public-sector bodies shall indicate at the outset which factors are taken into account in the calculation of those charges. Upon request, the public sector body in question shall also indicate the way in which such charges have been calculated in relation to the specific re-use request.

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The Meta Data Retention law, which entered into force on 1 July 2017 obliges internet and phone operators to store the users’ metadata and to forward it to the authorities if required. According to Paragraph 100(g) Criminal Procedure Law (Strafprozeßordnung, 12.09.195 with later amendments, BGBl. I S. 1074, 1319 , hereinafter StPO)662 and Paragraph 96(1) Telecommuncation Law (Telekommunikationsgesetz, BGBl. I S. 1190, 22.06.2004, hereinafter TKG)663, the competent authorities can gain access to the data if it is needed to inquire about the case, and accessing the data is proportionate to the case investigated, and when the person in question has committed a crime / offence. The definition of the 'crime' from Paragraph 100(a)(2) StPO shall be applied here, so that the “crime” allowing the authorities to gain access to the data is clearly defined and the scope of the law is not too broad. Upon request, the electronic communication providers should pass the data on to the relevant authorities.

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

According to Paragraph 2(1) IWG, the public sector bodies are defined unambiguously as: a) state, regional and local authorities, including their special assets; b) other legal persons governed by public or private law established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, for the most part financed by the bodies referred to under (a) or (c) either individually or jointly, by participation or otherwise, or whose management is supervised by these bodies, or more than half of the members of whose management or supervisory organs are appointed by these bodies. The same shall apply where the body that for the most part

662 https://www.gesetze-im-internet.de/stpo/StPO.pdf. 663 https://www.gesetze-im-internet.de/tkg_2004/TKG.pdf.

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finances, either individually or jointly with other bodies, or appoints, either individually or jointly with other bodies, more than half of the members of the management or supervisory organs, falls under the first sentence; c) associations whose members fall under (a) or (b).

Q28. De facto exclusivity – have any issues been noted in your Member State (via case law or academic discussion, etc.) regarding de facto exclusivity? i.e. where there is no explicit agreement in place granting exclusive rights, but in practice one entity exclusively re-uses the data concerned?

There is a discussion regarding the exclusive access to legal information, including access to the courts’ judgements which are in theory free and accessible for all. In practice, this is more complicated because the judgements are not freely available on the internet. Although judgments and laws belong to the public domain, some companies earn money from paid databases that collect laws and judgements. For example, Juris GmbH generated a big revenue that way in 2009. Companies earn money this way from the subscription fees for databases with public domain laws and judgments, and with fees for copyrighted specialist literature. Juris GmbH, according to “Der Spiegel” in 2011 belonged for 50.01% to the Federal Republic, and for 45.33% to an investor. The article in the “Spiegel” concluded that the loss to the public through this strange construction of the market was not easy to quantify. Even the partial privatisation of Juris GmbH is an apparent opening of the market where two large providers dominate, one of them being the preferred one with whom the German state has an exclusive contract.664 Academic articles analyse this issue. An article from 2011 states that the claim for equal treatment under Paragraph 3(1) IWG should be analysed specifically with regard to the laws published in the legal database "Juris". Documentation and publication obligations exist for the courts’ judgements, as they belong to the public domain within the scope of Article 5(1) UrhG. Germany fulfills this public duty through, among other, the legal database "Juris". According to Paragraph 5(1), 5(2) UrhG, the legal database "Juris", being established by the Federal Republic

664 http://www.spiegel.de/netzwelt/web/jura-datenbanken-so-verdienen-finanzinvestoren-am-verkauf-deutscher-urteile-a-755813.html.

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of Germany, is thereby an official database. Hence, the idea expressed in the contracts between the Federal Republic of Germany and Juris GmbH that anyone, even the state itself, can have rights to normative data, needs to be reconsidered.665 Moreover, in an Administrative Court judgement in the region of Baden Württemberg, it was decided that the provider of a legal database has the right to receive the judgements of the Federal Constitutional Court in the same form (prepared by the courts’ employees) as was - at the time of the judgement - provided to only one information service provider. The granting of exclusive rights in favour of a publisher was held incompatible with the right to equal treatment in the supply of (unedited) decision texts Administrative Court of Baden Württemberg - VGH Baden-Württemberg, Judgment from 07. 05. 2013, 10 S 281/12).666

665 Thomas Fuchs, Die Weiterverwendung der gemeinfreien Rechtsdatenbank “juris” (“The re-use of the public domain database “Juris”), http://delegibus.com/2011,2.pdf. 666 http://online.ruw.de/medienrecht/urteile/Anspruch-auf-uebermittlung-dokumentarisch-bearbeiteter-BVerfG-Entscheidungen-22472.

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Greece Country: Greece Author: Prodromos Tsiavos, Christina Tsiotra Date: 20 December 2017

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (e.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

Law 3448/2006 on the re-use of public sector information and the regulation of issues within the competency of the Ministry of Interior, Public Administration and Decentralisation (Νόμος υπ’ αριθμ. 3448/2006 Για την περαιτέρω χρήση πληροφοριών του δημοσίου τομέα και τη ρύθμιση θεμάτων αρμοδιότητας Υπουργείου Εσωτερικών, Δημόσιας Διοίκησης και Αποκέντρωσης) was enacted in order to implement the 2003 PSI Directive in the Greek legislation. Furthermore, Law 4305/2014 Open supply and re-use of public sector documents, information and data, amendment to Law 3448/2006 (A 57), adaptation of national legislation to the provisions of Directive 2013/37/EU of the European Parliament and of the Council, further enhancing transparency, regulating matters relating to the Entry Examinations of the National School of Public Administration and Local Government and other provisions amended Law 3448/2006 according to the modifications of 2013. (Νόμος υπ’ αριθμ. 4305/2014 Ανοιχτή διάθεση και περαιτέρω χρήση εγγράφων, πληροφοριών και δεδομένων του δημοσίου τομέα, τροποποίηση του ν. 3448/2006 (Α’ 57), προσαρμογή της εθνικής νομοθεσίας στις διατάξεις της Οδηγίας 2013/37/ΕΕ του Ευρωπαϊκού Κοινοβουλίου και του Συμβουλίου, περαιτέρω ενίσχυση της

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διαφάνειας, ρυθμίσεις θεμάτων Εισαγωγικού Διαγωνισμού Ε.Σ.Δ.Δ.Α. και άλλες διατάξεις). The Ministry of Administrative Reform and e-Governance issued the Government Circular 407/2015 (υπ’ αριθμ. 407/2015 Υπουργική Εγκύκλιος) which provides explanations on Chapter A of Law 4305/2014.667

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

The Ministry of Administrative Reform and e-Governance, Directorate General for reform and e-Governance, Department of Transparency, Open government and Innovation is responsible for implementation.668 Furthermore, the Ministry for Digital Policy is also responsible for coordinating all state funded projects regarding eGovernment, hence, Open Government and Open Data projects.669

667 https://diavgeia.gov.gr/decision/view/%CE%A9%CE%A9%CE%A1%CE%9C%CE%A7-%CE%9C%CE%92%CE%9B. 668 http://www.minadmin.gov.gr/?p=15915. 669 http://mindigital.gr/.

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Greece enacted Law 3882/2010 National Infrastructure for Spatial Data-Harmonisation with the EU Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 (Νόμος υπ’ αριθμ. 3882/2010 “Εθνική Υποδομή Γεωχωρικών Πληροφοριών – Εναρμόνιση με την Οδηγία 2007/2 του Ευρωπαϊκού Κοινοβουλίου και του Συμβουλίου της 14ης Μαρτίου 2007) in order to implement the INSPIRE Directive in the Greek legislation. Art. 2(1) of Law 3882/2010 states that this law shall apply without prejudice to the provisions of the Law 3448/2006 (amended by Law 4305/2014). There is a significant degree of synergy between these two Laws as the geographic and environmental information of the Law 3882/2010 represent a significant portion of the total economic value of the Law 3448/2006. Furthermore, the data themes of the Law 3882/2010 are primarily related to issues in the public sector; Art. 4 of Law 3882/2010 which defines the scope of this Law is identical to Art. 4 of the INSPIRE Directive. There are also various differences between these two Laws. Law 3448/2006 defines the rules for exploiting PSI once it has been made available, but it allows public sector bodies to define the types of information to make available as well as when and how (Art. 2-12 of Law 3448/2006). By contrast, Law 3882/2010 is more prescriptive, and it defines what information must be made available within a certain timeframe, in what format it must appear, and how it should be documented and made accessible (Art. 4, 6(2), 7, 8, 9, 10, 11, 12 of Law 3882/2010). An additional difference relates to the types of activities that the two laws prescribe: Law 3882/2010 covers the entirety of the information life-cycle (procurement, sharing with public sector bodies that are part of the INSPIRE system and sharing with third parties), whereas Law 3448/2006 covers only re-use by third parties. Finally, the INSPIRE system provides exhaustive technical details in relation to the services and meta-data provided by public sector bodies, whereas Law 3448/2006 contains only a general provision regarding technical and necessary measures.

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The implementation of Law 3882/2010 still requires the issuing of detailed secondary rules by the competent authorities (especially the ministerial council), which are still pending. Authorities, such as the Cadastre, still need to comply with the provisions of Law 3448/2006 as amended by Law 4305/2014. National commitments undertaken in the context of the Open Government Partnership have not yet been implemented.670

1) According to Art. 20(1) of Law 2121/1993, Copyright Law (Νόμος υπ’ αριθμ. 2121/1993 Πνευματική ιδιοκτησία, συγγενικά δικαιώματα και πολιτιστικά θέματα), the Ministry of National Education and Religious Affairs is allowed to include in educational books, used as books teaching in primary and secondary education, works by authors, lawfully published, without the authors’ permission and without remuneration. 2) According to Art. 22(1) of Law 2121/1993, non-profit libraries and archives are allowed to reproduce copy of books that they already

670 https://www.opengovpartnership.org/countries/greece.

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have in their collection without the authors’ permission and without remuneration when the supply of this book is impossible or extremely difficult. 3) According to Art. 23 of Law 2121/1993 it is allowed to reproduce a film without the creator’s permission and without remuneration, after a decision of the Minister of Culture and with the consent of the Cinematography Advisory Council with the purpose to preserve the film at the National Theatre-Movie Archive when the copyright owner is abusively reducing to give his permission, and if it is a film of artistic value. 4) According to Art. 24 of Law 2121/1993 it is allowed to reproduce a copyright work without the creator’s permission and without remuneration for use in judicial or administrative proceedings in so far as it is justified by the objective pursued.

According to Art. 45A (6) of Law 2121/1993, Copyright Law, as amended by Law 2819/2000 (Νόμος υπ’ αριθμ. 2819/2000) implementing the Database Directive, the legitimate user of a database that has been made available to the public can export and / or reuse substantial part of its content without the permission of the author of the database in the following cases: i) for educational or research purposes, ii) for the purposes of public security and for the purposes of a judicial or administrative procedure.

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No. Researchers and scientists use article 19 of Law 2121/1993 to ensure public access and re-use of scientific information. Article 19 stipulates that the re-use of short extracts for the purpose of providing support for a case advanced by the person making the quotation or a critique of the position of the author shall be permissible without the consent of the author and without payment, provided the quotation is effected.

Q8. Are there any national rules that regulate or affect the access and re-use of data held by public research and educational institutions (which are currently excluded by Article 1.2 (e) of the PSI Directive)? Please describe (if so). Yes. Art. 4(1)(g) of Law 4485/2017 Organisation and operation of Higher Education, regulations on research and other measures provisions (Νόμος υπ’ αριθμ. 4485/2017 Οργάνωση και λειτουργία της ανώτατης εκπαίδευσης, ρυθμίσεις για την έρευνα και άλλες διατάξεις), stipulates that it is within the goals of the Higher Education Institutions to produce common, open educational resources in education, research, technology and culture. Art. 25(1)(b) and (c) of Law 4310/2014 on research, technological development, innovation and other provisions (Νόμος υπ’ αριθμ. 4310/2014 Έρευνα, τεχνολογική ανάπτυξη και καινοτομία και άλλες διατάξεις) stipulates that the General Secretariat for Research and Technology and all Research Performing Organisations should provide open access to all research results and ensure the interconnection of such results with other open access initiatives, as well as the use of open access thematic institutional repositories for all final research results of their staff when this research has been conducted with public funding. In addition, according to art. 33(1) of Law 4310/2014 the General Secretariat for Research and Technology creates an open access registry of all researchers, their research work, Greek public research organisations and technological institutes.

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Art. 2(b) of Law 2472/1997 on Data Protection, provides that data on criminal charges or convictions may be made available for publication by a public prosecuting authority for the offenses referred to in Art. 3(2b) of Law 2472/1997671 on the basis of an order issued by the competent public prosecutor of the Court of First Instance or the chief Public Prosecutor if the case is pending before the Court of Appeal. Specific and thorough reasons shall be given for the order, also specifying the place at which the data will be made public and the relevant duration. Making these data public aims to protect the society, minors, vulnerable or disadvantaged groups and to enable the Hellenic State to administer punishment for the above offences. Art. 5 of Law 2690/1999 Code of Administrative Procedure in conjunction with Art. 12 of Law 2472/1997 states that when public documents containing personal data of the person who requests access to them, then this person has an indisputable right of access those documents. If, however, the public document contains secret or confidential information or if there are any intellectual property rights, then this information is removed from the document.672

671 Crimes which are punished as felonies or misdemeanors with intent, and especially with the aim of verifying crimes against life, against sexual freedom, crimes involving the economic exploitation of sexual life, crimes against personal freedom, against property, against the right to property, violations of legislation regarding drugs, plotting against public order, as well as crimes against minors. 672 See also the website of the National Data Protection Authority: http://www.dpa.gr/portal/page?_pageid=33,24590&_dad=portal&_schema=PORTAL.

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Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing: The need to ensure that only PSI that contains no personal data is made available for re-use No.

The obligation to anonymise or pseudonymise PSI containing personal data before making it available for re-use (possibly including No. methodologies or procedures for pseudonymisation or anonymization) The obligation to conduct a data protection impact assessment or a similar risk assessment before making PSI containing personal data No. available for re-use The obligation to include data protection provisions in licenses for re-use of PSI containing personal data (e.g. including restrictions on No. the purposes of use of the PSI to ensure compatibility with the original purposes)

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis? Documents for which citizens or companies need to prove a particular Yes, “Documents, information or data for which there are specific interest to obtain access provisions limiting access thereto only to citizens or undertakings which can prove that they have a specific legal interest” (Art. 3(1)(ca) of Law 3448/2006, as amended by Law 4305/2014).

Documents relating to national security, statistical confidentiality or Yes, “Documents, information and data excluded from access on the commercial confidentiality grounds of: i) the national security, defence, public order, external policy or information systems security, ii) tax and statistical

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confidentiality, iii) commercial, industrial, business, professional or company confidentiality (Art. 3(1)(c) i), ii), iii) of Law 3448/2006, as amended by Law 4305/2014). Documents the supply of which is an activity falling outside the public Yes, “Documents, information or data the supply of which is an task activity falling outside the scope of the public mission of the public sector bodies concerned” (Art. 3(1)(a) of Law 3448/2006, as amended by Law 4305/2014).

Documents containing personal data Yes, “Documents, parts of documents, information and data, access to which is prohibited or restricted for reasons relating to the protection of personal data, or access to which is permitted but re-use of which is incompatible by law with the legislation on the protection of individuals with regard to the processing of personal data” (Art. 3(1)(cc) of Law 3448/2006, as amended by Law 4305/2014). Documents held by educational and research establishments (other Yes, “Documents, information and data held by educational and than university libraries) and documents held by cultural research establishments, including organisations established for the establishments other than libraries, museums and archives transfer of research results, schools and higher educational establishments, except libraries of higher educational establishments, as well as documents, information and data held by cultural establishments other than libraries, museums and archives” (Art. 3(1)(e) of Law 3448/2006, as amended by Law 4305/2014). Documents held by public service broadcasters and their subsidiaries Yes, “Documents, information and data held by public service broadcasters and their subsidiaries, or by other bodies and their subsidiaries for the fulfilment of a public service broadcasting remit”

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(Art. 3(1)(d) of Law 3448/2006, as amended by Law 4305/2014). Documents for which 3rd parties hold intellectual property rights Yes, “Documents, information and data for which third parties hold intellectual property rights” (Art. 3(1)(b) of Law 3448/2006, as amended by Law 4305/2014).

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

Law 3448/2006, as amended by Law 4305/2014 links the right of re-use with the right of access to public documents. More specifically, Art.2(1) of Law 3448/2006, as amended by Law 4305/2014, establishes the principle of open supply and re-use of public information by stating that: “Public-sector documents, information and data shall be made freely available, as of the time of posting, publication or initial supply thereof, for re-use and re-utilisation for commercial and non-commercial purposes, without any action being required on the part of the party concerned or any act being required on the part of the administration”. It is further explained in the Government Circular 407/2015 that access should be considered as the means to meet the objective which is the re-use of public documents.

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Is there any specific framework or rules at national level setting out where the re-use of such documents is allowed? Or is there any guidance from the Ministry in charge of implementing the PSI Directive, or from the Ministry responsible for culture or education? Alternatively, is there any guidance published by the CHI themselves, such as the national archives?

No, there are not such rules at national level. PSI rules have to comply with Law 3028/2002 regarding the protection of cultural heritage (Νόμος υπ’ αριθμ. 3028/2002 Για την Προστασία των Αρχαιοτήτων και εν γένει Πολιτιστικής Κληρονομιάς). Art. 4(2) of Law 3028/2002 provides that the specific conditions for the exercise of the right of access to cultural data for research or other purposes will be laid down by specific Presidential Decrees. No such Presidential Decrees have been identified during this research.

Q14. Charging by Cultural Heritage Institutions (Article 6(4)) (d) Does national law (or case law or guidance) clarify how the concept of “reasonable rate of return” should be applied by cultural heritage institutions?

No information found during this research.

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According to Art. 12(2A) of Law 3448/2006, as amended by Law 4305/2014: “Arrangements granting the exclusive rights referred to in the first subparagraph must comply with the principle of transparency, as per Art. 2(2) of Law 2251/1994 (Government Gazette, Series I, No 191) and must be posted on the www.data.gov.gr website and the website of the respective body”.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) No.

“disproportionate effort” (Art 5(2)) No.

Q17. Dynamic data / APIs

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Are there any requirements on public bodies or bodies governed by public law (or some of these bodies) to do the following, in respect of public sector information (or some of this information)?

(y) published online in their original, unmodified form to ensure No. timely release

(z) published and updated frequently at the highest possible level No. of granularity to ensure completeness and accuracy (aa)published and maintained at a stable location, preferably on No. the highest organisational level within the administration, to ensure easy access and long-term availability (bb)published in machine-readable and open formats (CSV, JSON, No. XML, RDF, etc.) to enhance accessibility

(cc)described in rich metadata formats and classified according to No. standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability (dd)accessible as data dumps (massive outputs of data) as well as No. through application programming inter faces (APIs) to facilitate automatic processing (ee)accompanied by explanatory documents on the metadata and No. controlled vocabularies used, to promote the interoperability of databases

(ff) subject to regular feedback from re-users (public No. consultations, comments box, blogs, automated reporting, etc.) to maintain quality over time and promote public involvement 574

Yes, Art. 10 of Law 3448/2006, as amended by Law 4305/2014, in conjunction with the Government Circular 407/2015 stipulate that a Register of Open Public Sector Data will be kept by the Ministry of Administrative Reform and e-Governance which is available on the www.data.gov.gr website. All public sector documents, information and data available in open and machine-readable format, classified in “Structured Datasets”, or any links to the bodies’ websites where such documents, information and data are kept shall be posted on the Register of Open Public Sector Data. Within three months from the entry into force of the amended Law 3448/2006, the public sector bodies must record and assess, by category, all documents, information and data in their possession, for the purpose of making them openly available. Thereafter, within three months after the recording is complete, each body will issue a ruling, which will describe all the categories of documents, information and data held by the body. This decision will be posted on the “Transparency Programme” website as per Law 3861/2010 www.diavgeia.gov.gr and on the website of the respective body, and will also be communicated to the Ministry of Administrative Reform and e-Governance. The Inspectors and Controllers Body for Public Administration (SEEDD) will inspect compliance of the public sector bodies. It is further mentioned in the Government Circular 407/2015 that in case of issuance of new Circulars or guidelines in the future, they will be published on the website www.data.gov.gr.

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? According to Art. 13(1) of the Code of Access to Public Documents and Records: “In case of charges for re-use of documents, information or data held by public-sector bodies, any applicable conditions and the total amount of those charges, including the calculation basis for such

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charges, shall be pre-established and published electronically at www.data.gov.gr and on the body’s website”. While conducting this research, no information was found in the abovementioned website with regard to charges calculation.

Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

No.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

No information available.

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

No information publicly available.

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Art. 5 of Law 2690/1999 Code of Administrative Procedure, as amended by Article 8(2) of Law 2880/2001 and Article 11(2) of Law 3230/2004, regulates the regime of access to public documents. According to Art. 5(3) of Law 2690/1999 the right of access to public documents shall not exist if the document relates to the private or family life of a third party. The competent administrative authority may refuse to grant the right concerned if the document refers to the deliberations of the Council of Ministers or if the granting of the right may substantially hinder an investigation carried out by judicial, administrative, police or military authorities in respect of a crime or administrative infringement. Furthermore, a negative decision can be based on the grounds provided by Art. 3(1) of Law 3448/2006, as amended by Law 4305/2014 (see Q11 above).

Art. 5(4)(5) of Law 3448/2006, as amended by Law 4305/2014, clearly describes the redress scheme in place. More specifically, an administrative appeal may be lodged against the rejection decision of the body concerned before the General Inspector of Public

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Administration, who will rule according to the legal and material merits of the case. This appeal must be lodged within a strict deadline of ten days from the notification of rejection to the applicant. Rulings of the General Inspector of Public Administration are subject to an appeal for annulment before the competent Three-Member Administrative Court of Appeal.

Art. 9 (1),(2) of Law 3448/2006, as amended by Law 4305/2014, provides that fees charged for the re-use of documents, information or data held by public sector bodies, as well as applicable terms and conditions and the total sum of said charges, together with the basis on which they are calculated according to the provisions of Art.8, will be determined beforehand and published, via electronic means on the www.data.gov.gr website as well as on the website of the respective body. The terms and conditions referred to in Art. 8(2) will be published electronically on the www.data.gov.gr website and on the website of the respective body. While conducting this research, no information was found in the above website regarding the calculation of the fees.

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Which types of data do the rules apply to? For example, data with some sort of societal value? On what basis they are required to share? For example, because the data was gathered in the context of activities funded by the government in some way (such as grants, procurement contracts, or concessions granted to the private entity). No information found during this research.

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition? bodies governed by public law

Art. 51(1) of Law 1892/1990 describes which bodies fall under the public sector and are governed by public law. In particular: a) all civil services; b) any kind of public businesses or organisations as well as legal entities pursuing public purposes; c) State-owned banks, either wholly or majority-owned by the State; d) any kind of affiliates of legal entities referred to in point (b) of this Article.

No information found during this research.

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Ireland Country: Ireland Author: Heather Broomfield, Peter McNally Date: 20 December 2017

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (e.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

Both the 2003 Directive and the 2013 amendments were introduced into the national legal order by means of Ministerial Regulations, a form of secondary legislation commonly used for transposition of EU Directives – it is essentially an executive rather than a legislative instrument.673 Thus, the European Communities (Re-use of public sector information) Regulations 2005 (as amended) are a dedicated law on access and re- use. The 2005 Regulations were passed by the Minister for Finance, with the 2015 amendments being passed the Minister for Public Expenditure and Reform (hereinafter “the Minister”) and Reform (the portfolio of the Minister for Finance having been split into “Finance” and

673 European Communities (Re-use of public sector information) Regulations 2005 amended by European Communities (Re-use of public sector information) (Amendment) Regulations 2015.

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“Public Expenditure and Reform” after the financial crisis). The Minister published a Guide for Public Sector Bodies on the Re-use of Public Sector Information in April 2016 and revised it in May 2017.674 The Minister has also issued several circulars clarifying issues such as the open standard licence to be used,675 criteria for charging,676 and recommending actions to be taken in light of the 2005 regulations.677 The Freedom of Information Act was passed in 2014 which provides for a publication scheme.678 This means that every public body should publish as much information as possible beyond just what is based on FOI requests. This is moving towards a more proactive sharing of information from the public sector. The Minister has also published a Draft General Scheme of the Data-Sharing and Governance Bill, Part 6 of which is geared towards the publication of open data, including: - Practices to be applied by public service bodies; - Licensing conditions for public bodies for open data; - Formats for open data; - Requirements for data standards; - Designation and publication of particular datasets as high-value datasets; - Requirement for public bodies to publish in compliance with publication requirements and format specifications on an open data portal.679

674 https://data.gov.ie/sites/default/files/files/PSI%20guidance%20for%20PBs%20May%202017(1).pdf. 675 http://circulars.gov.ie/pdf/circular/per/2016/12.pdf. 676 http://circulars.gov.ie/pdf/circular/per/2015/16.pdf. 677 http://circulars.gov.ie/pdf/circular/finance/2005/32.pdf. 678 http://www.irishstatutebook.ie/eli/2014/act/30/enacted/en/html. 679 http://www.per.gov.ie/en/datasharing/.

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The draft of this bill has developed significantly, and publication of a final version is imminent.

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

Minister for Public Expenditure and Reform (formerly Minister for Finance).

To which data do the respective legal instruments apply? National rules implementing the PSI Directive apply to documents, being defined as all or part of any form of document, record or data, whether in physical, electronic or other form. National rules implementing INSPIRE apply to metadata, spatial data sets and spatial data services; network services and technologies; agreements on sharing, access and use; and coordination and monitoring mechanisms, processes and procedures, established, operated or made available in accordance with these Regulations. Thus, the scope of the data covered under the PSI Directive is broader than the scope of data covered under the INSPIRE Directive. 583

It should be noted that the measures transposing the PSI Directive do not apply to documents access to which can be excluded by virtue of the national measures implementing INSPIRE.

To whom do the respective legal instruments apply? The national rules implementing the PSI Directive apply to public sector bodies, defined as: (a) the State, (b) a regional assembly, (c) a local authority, (d) another body governed by public law, or (e) an association formed by one or several bodies or associations referred to in this definition. The national rules implementing the INSPIRE Directive apply to public bodies: (a) any government or other public administration, including public advisory bodies, at national, regional or local level, and shall include a Government Department, Regional Authority, Local Authority, Office or Agency or Authority of the State; (b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and (c) any natural or legal person having public responsibilities or functions, or providing public services relating to the environment under the control of a body or person falling within (a) or (b). Thus, there are some differences in the scope. For example, the INSPIRE regulations can apply to natural persons, whereas the PSI regulations do not. However, there is a large degree of overlap. Thus, most bodies to whom the INSPIRE regulations apply will also be bound by the PSI regulations.

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730 datasets on the Irish Open data portal conform to the Inspire Directive.

No issues have been noted during this research.

In the Magill Case, which concerned the refusal by a public sector body to allow re-use of tv listings by a private company, the Court of Justice held that the exercise of copyright could constitute a breach of a dominant position.680 Thus, notwithstanding the existence of copyright

680 Joined cases C-241/91 P and C-242/91P Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v Commission of the European Communities [1995] ECR I-00743.

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protection, the public body was forced to allow re-use of the information. However, this was a decision by the European Court of Justice, and does not constitute national case law as such.

The Magill case concerned copyright, but the same reasoning would apply to the sui generis database right. However, this was a decision by the European Court of Justice, and does not constitute national case law as such.

The Copyright and Related Rights Act 2000 (as amended) provides the following in relation to public administration (section 74(5)): “Where material which is open to public inspection pursuant to a statutory requirement, or is on a statutory register, contains information about matters of general, scientific, technical, commercial or economic interest, the copyright in the material is not infringed by the copying or making available to the public of copies of that material for the purpose of disseminating that information, by or with the authority of the person required to make the material open to public inspection or, as the case may be, the person maintaining the register.”

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Q8. Are there any national rules that regulate or affect the access and re-use of data held by public research and educational institutions (which are currently excluded by Article 1.2 (e) of the PSI Directive)? Please describe (if so). The Irish Government has put in place a knowledge transfer protocol which sets out the manner in which the results of fully or partially funded research can be exploited. Rather than providing for exceptions to IP rights, it dictates how the public research institution shall licence its IP. It provides that, where the research is 100% funded by the state, a public research institution shall own the IP, and shall be free to licence it. Access by industry to IP owned by a public research institution will normally be by the granting of licence(s) on fair commercial terms by the RPO on an exclusive or non-exclusive basis, provided that the licensee commercialises it in a timely manner. National Principles for Open Access were adopted by the Irish Government in 2012681. These largely refer to open access for publications. A set of principles for research data publication is currently being worked on. These are not yet published.

The Data Protection Acts 1988 and 2003 do not explicitly mention public sector information containing personal data. The Re-use of PSI Regulations (Reg 3(1)(c)) state that they do not apply to documents, access to which could be excluded by virtue of the Data

681 http://www.iua.ie/wp-content/uploads/2012/10/National-Principles-on-Open-Access-Policy-Statement-FINAL-23-Oct-2012-v1-3.pdf.

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Protection Acts 1988 and 2003. Further Reg 3(2)(a) states that nothing in the regulations shall be read as affecting any right or function under the Data Protection Acts 1988 and 2003.

Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is Open data cannot contain personal data and this is referred to in made available for re-use many documents, such as circular 12/2016682 and the technical framework. However, there are no specific guidelines here. The obligation to anonymise or pseudonymise PSI containing personal There is general guidance from the data protection commissioner data before making it available for re-use (possibly including regarding ‘anonymisation’ and ‘pseudonymisation’.683 Whilst this does methodologies or procedures for pseudonymisation or not explicitly state PSI, it does apply here. The technical framework anonymization) which underpins the publication of datasets refers to this, see technical framework Decision process Map.684 The obligation to conduct a data protection impact assessment or a No. similar risk assessment before making PSI containing personal data

682 http://circulars.gov.ie/pdf/circular/per/2016/12.pdf the technical framework and the Strategy. 683 https://dataprotection.ie/viewdoc.asp?DocID=1594&ad=1. 684 https://data.gov.ie/technical-framework.

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available for re-use

The obligation to include data protection provisions in licenses for re- The Minister published a circular for public bodies with an open use of PSI containing personal data (e.g. including restrictions on the standard licence for PSI containing the conditions for re-use. Among purposes of use of the PSI to ensure compatibility with the original the terms, it states that the licence does not grant users the right to purposes) use personal information unless sufficiently anonymised or aggregated. Ireland has now moved over to recommending CC-BY 4.0.

Documents relating to national security, statistical confidentiality or Yes. commercial confidentiality Documents the supply of which is an activity falling outside the public Yes. task Documents containing personal data Yes, documents, access to which can be excluded by virtue of the Data Protection Acts 1988 and 2003. Documents held by educational and research establishments (other Yes. than university libraries) and documents held by cultural establishments other than libraries, museums and archives Documents held by public service broadcasters and their subsidiaries Yes.

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Documents for which 3rd parties hold intellectual property rights Yes.

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

The definition of re-use in the Directive is transposed into national law more or less identically. The way the right is framed, the individual/legal entity which wants to re-use the data must make a request for the public sector body to “release” it to them for re-use. Thus, the right to re- use seems to be linked to the access of the data.

Q13. Cultural Heritage Institutions allowing re-use (Article 3(2))

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There is no specific framework setting out where the re-use of such documents is allowed.

Q14. Charging by Cultural Heritage Institutions (Article 6(4)) (e) Does national law (or case law or guidance) clarify how the concept of “reasonable rate of return” should be applied by cultural heritage institutions?

No.

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There do not seem to be any national rules concerning exclusive arrangements arising from the digitisation of cultural resources. However, it is notable that the Minister for Culture, Heritage, and the Gaeltacht recently approved funding for digitisation of cultural resources, which will fund a number of digitisation projects planned by National Cultural Institutions and cultural heritage organisations.685

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) No.

“disproportionate effort” (Art 5(2)) Two cases which have gone to the Office of the Information Commissioner in Ireland which concern ‘disproportionate effort’. The following synopses are provided by the department of Public Expenditure and Reform. The links to the cases themselves are provided also. Vizlegal Limited v. Patents Office686 The first case related to a request for reuse of the Patent Office databases of patents, trademarks and designs. The appellant’s request extended to parts of the databases published online as well as

685 https://www.chg.gov.ie/minister-humphreys-announces-funding-for-national-library-of-ireland-project-under-new-cultural-digitisation-scheme/. 686 http://www.oic.gov.ie/en/about-us/re-use-of-public-sector-information/case-rpsi-16-02.pdf.

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unpublished but non-confidential parts of these databases. The Commissioner confirmed that a right of access to the information sought must exist before the Regulation comes in to play. Thus, he upheld the Patent Office’s Decision to refuse access to unpublished parts of the databases on the basis that no right of access to this information had been established, e.g. by way of FOI or AIE. The Commissioner also upheld the Patent Office’s refusal to provide the appellant with its primary database in an open, machine-readable format, on the basis that, having regard to the complexity and structure of its databases, to do so would amount to creating a new database or adapting the existing one, constituting a disproportionate effort going beyond a simple operation. In relation to the trade mark register, a facility already existed whereby licensed access could be granted for a set fee coming to €16,250 p/a, together with a connection fee of €2,650. The Commissioner considered whether this was compatible with the regulations, as it exceeded marginal costs, finding that a requirement to substantially recover operating costs applied to the Patent Office and therefore the fee was justifiable. RTÉ v. The Companies Registration Office687 The second related to a request by a journalist for reuse of the

687 http://www.oic.gov.ie/en/about-us/re-use-of-public-sector-information/rpsi-16-03-decision-27-jan.pdf.

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Companies Registration Office’s (CRO) database of disqualified and restricted company directors. The database is available online free of charge by way of a search system which allows members of the public to query the database. While the Commissioner found that a right of access to the database exists under section 891 of the Companies Act 2014, the Regulations did not oblige the CRO to adapt the database to meet the appellant’s request, as doing so would require a disproportionate effort on the part of the CRO, going beyond a simple operation. There is some discussion in the decision, also, of the issue of whether it may have been appropriate to provide the appellant with a machine-readable copy of the database in circumstances where there is a statutory obligation for names of persons to be removed from the register once their period of disqualification / restriction has elapsed, in particular having regard to EU “right to be forgotten” data protection litigation, as well as whether appropriate conditions on use could be put in place in order to address the CRO’s concerns in that regard. Ultimately, however, it was not necessary for the Commissioner to make a finding on the point as the case had already been decided on the basis set out in the preceding paragraph.

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(gg)published online in their original, unmodified form to ensure No particular central requirements. Although many Public bodies timely release would have their own internal requirements.

(hh)published and updated frequently at the highest possible level No particular central requirements. When organisations register their of granularity to ensure completeness and accuracy data on the portal they will provide this information, however there are no requirements that it has to be up to date.

(ii) published and maintained at a stable location, preferably on Public sector information metadata is published on the government’s the highest organisational level within the administration, to dedicated Open Data Portal.688 ensure easy access and long-term availability (jj) published in machine-readable and open formats (CSV, JSON, The Department of Expenditure and Reform has published an Open XML, RDF, etc.) to enhance accessibility Data Technical Framework which indicates that data should be in such format.689 (kk)described in rich metadata formats and classified according to Yes – see Open Data Technical Framework. standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability

(ll) accessible as data dumps (massive outputs of data) as well as A number of datasets are available on the portal via API. through application programming inter faces (APIs) to facilitate automatic processing

688 https://data.gov.ie/data. 689 https://data.gov.ie/technical-framework#publishing-open-data.

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(mm)accompanied by explanatory documents on the metadata No, but public bodies are encouraged to give as much description as and controlled vocabularies used, to promote the possible. interoperability of databases (nn)subject to regular feedback from re-users (public The Open data portal encourages feedback in the form of comments. consultations, comments box, blogs, automated reporting, Users are also asked to complete a short voluntary survey when they etc.) to maintain quality over time and promote public use a dataset. Public consultations690 are standard in the Irish public involvement sector e.g. the Open data strategy went to public consultation. The Open Data Governance Board has invited and met with many stakeholders from the public, private and research sectors and civil society.

The Open Data Unit of the Department of Expenditure and Reform has established an Open Data Portal which facilitates the search for documents available for re-use. There are currently 5477 datasets searchable on the portal. Coupled with this, section 8 of the Freedom of Information Act 2014 requires public bodies to prepare and publish a scheme concerning the publication of information by the body in conformity with a model publication scheme or guidelines made by the Minister (for Public

690 http://www.per.gov.ie/en/consultation-guidelines/.

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Expenditure & Reform). The model publication scheme requires information to be provided on the websites of public bodies in tabular form under the 6 headings, ensuring consistency and ease of access for all requesters.691 Public bodies are advised that a link to the publication scheme prepared by a public body under section 8 of the FOI Act 2014 will suffice to comply with the requirement under Article 9 of the Directive. The scheme should be kept up to date and documents routinely sought should continue to be published.

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? Circular 16/15: Re-use of Public Sector Information – Criteria for charges that may be applied by certain categories of public service body in permitting re-use of information, published by the Department of Public Expenditure and Reform and circulated to the Heads of Government Departments, sets out the principles to be applied when charging for documents. (see Q22, below, for more detail).

Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

Paragraph 4. in the Circular 16/15: Re-use of Public Sector Information – Criteria for charges clarifies the scope of the charging expectation set out in Article 6(2)(a). It states: The general principle regarding charging as set out in paragraph 3 above does not apply to:

691 By way of example, see the Department of Public Expenditure and Reform FOI Publication Scheme http://www.per.gov.ie/en/foi-publication-scheme/.

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(a) a body that is required to generate revenue to cover a substantial part of its costs relating to the performance of its public task; (b) documents for which the body making the charge is required to generate sufficient revenue to cover a substantial part of the costs relating to their collection, production, reproduction or dissemination; or (c) libraries (including university libraries), museums and archives. The requirement referred to in sub-paragraph (b) must be one which is defined— i. by law or other binding rules; or ii. in the absence of such rules, in accordance with common administrative practice.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

Paragraph 5 in the Circular on charging states that in the case of those bodies to which the Regulations apply and which fall within the categories set out at paragraph 4(a) and (b) above, if they seek to apply a charge for the re-use of information under the Regulations such charge should not exceed the sum of— (a) the direct costs incurred by the body; (b) a reasonable apportionment of indirect and overhead costs attributable to chargeable activity; and (c) a reasonable return on investment.

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Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

The Minister has laid down the criteria for the charges to be applied by bodies covered by the exception in Article 6(2)(a) and (b) in a circular.692 The charges should not exceed the sum of: (a) the direct costs incurred by the body; (b) a reasonable apportionment of indirect and overhead costs attributable to chargeable activity; and (c) a reasonable return on investment. In the same document, he set down the criteria for the charges to be applied by bodies covered by the exception in Article 6(2)(c). The total income of the body from supplying and permitting re-use of documents over the appropriate accounting period must, for each document, not exceed the aggregate of: (a) the direct costs; (b) a reasonable apportionment of indirect and overhead costs attributable to chargeable activity; and (c) a reasonable return on investment. “Direct costs” are defined as costs which are incurred by the body only as a consequence of it undertaking the chargeable activity “Apportionment” means, in relation to indirect and overhead costs, the allocation of such costs to each activity of the body in connection with which the costs are incurred

692 http://circulars.gov.ie/pdf/circular/per/2015/16.pdf.

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“Chargeable activity” in relation to a document and a public sector body, means— (a) in the context of paragraph 5 above, the body’s collection, production, reproduction and dissemination of the document; and (b) in the context of paragraph 6, the body’s collection, production, reproduction, dissemination, preservation and rights clearance of the document. “Indirect and overhead costs” in relation to a document and the body, means costs which are not direct costs and which are incurred by the body in connection with— (a) chargeable activity; and (b) any other of the body’s activities.

The Regulations 2005 on the re-use of PSI state that where a request under this Regulation is refused by a public sector body, it shall communicate the grounds of the refusal to the requester in particular and where appropriate by reference to the limit on application of the Regulations. Additionally, where the refusal is based on the intellectual property rights of a third party, the public sector body concerned shall include in the communication of the refusal to the requester a reference to the third party, where known, or alternatively to the licensor from which the public sector body has obtained the relevant material.693

693 Article 5(4).

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As an example, the Freedom of Information Act 2014, Section 12(1) provides that if a person making a request under the Act wants the data in a particular form, they should state this in the request. However, in Section 15(2) provides that this request may be refused if a record is available for inspection by members of the public whether upon payment or free of charge. In other words, the access in the requested form is refused, but it is still open to the person making the request to go and consult the record. This, however, may present problems in practice for both access and re-use, depending on the type of document concerned.

The Office of Information Commissioner was established under the Freedom of Information Act 1997. Its functions are:  the review (on application) of the decisions of public bodies in relation to FOI requests and where necessary, the making of binding, new decisions;  the review of the operation of the Freedom of Information Act 2014 to ensure that public bodies comply with their provisions;  the fostering an attitude of openness among public bodies by the encouragement of the voluntary publication of information above and beyond the minimum requirements of the Acts;

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 the preparation and publication of commentaries on the practical operation of the Acts; and  the publication of an Annual Report694 Under the Re-use of public sector information regulations, the Information Commissioner fulfils the role of “Appeals Commissioner” in relation to appeals against refusals by public bodies to allow re-use.695 The appeal must be made in a legible form within 4 weeks of the refusal by the public sector body (unless there are reasonable grounds for extension).696 The Appeals Commissioner reviews the decision, and may either: affirm or vary the decision; or annul the decision, and if appropriate, make such decision in relation to the matter concerned as he or she considers proper.697 The decision of the Appeals Commissioner shall be made as soon as practicable, but within 3 months.698 The Appeals Commissioner immediately gives a copy of the appeal to the public sector body, and may endeavour to effect a settlement between the parties.699 In determining whether to grant an application, the Appeal Commissioner shall act in accordance with their own discretion. Notice of their decision shall be given as soon as practicable, but within 3 months.700

694 See Part IV of the Freedom of Information Act 1997. 695 Regulation 2(1) of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended. 696 Regulation 10 of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended. 697 Regulation 12(2) of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended. 698 Regulation 12(3) of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended. 699 Regulation 12(5) and 12(6) of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended. 700 Regulation 12(8) of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended.

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Where the Appeal Commissioner considers that the statement of the reasons for the refusal of the request is not adequate, it shall direct the public sector body to furnish, within 3 weeks, a new statement containing any relevant further information within its possession or control. Obstructing or hindering the Appeal Commissioner in the performance of their duties is a summary offence.701 The Appeal Commissioner’s decision may be appealed to the High Court.702

A circular from the Minister states that public sector bodies shall make available to the public a list of their main documents that are available for re-use. They should also include on their website information regarding: - The policy on release of information under the PSI; - Details of any possible charges; - Licensing conditions, if applicable; - A link to the publication scheme prepared by the public body under Section 8 of the FOI Act 2014 (section 8 requires the publication of information about rights in relation to records held by public bodies).703

701 Regulation 13 of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended. 702 Regulation 15 of the European Communities (Re-Use of Public Sector Information) Regulations 2005, as amended. 703 https://data.gov.ie/sites/default/files/files/PSI%20guidance%20for%20PBs%20May%202017(1).pdf.

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Another circular echo the requirement in Art 7 PSI Directive that the conditions and actual amount of charges, as well as the basis for calculating such charges shall be pre-established and published through electronic means, where possible and appropriate. 704

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

704 http://circulars.gov.ie/pdf/circular/per/2015/16.pdf.

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No.

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Italy Country: Italy Author: Mariateresa Maggiolino, Alessandra Innesti Date: 20 December 2017

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (e.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

In Italy, two dedicated laws were adopted to implement 2003 PSI Directive and its modifications of 2013: 1) Legislative Decree No. 36 of 24 January 2006 on the re-use of public sector documents (Decreto Legislativo 24 gennaio 2006, n. 36, Attuazione della direttiva 2003/98/CE relativa al riutilizzo di documenti nel settore pubblico), as amended by 2) Legislative Decree No. 102 18 May 2015 Implementation of Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (Decreto Legislativo 18 maggio 2015, n. 102, Attuazione della direttiva 2013/37/UE che modifica la direttiva 2003/98/CE, relativa al riutilizzo dell’informazione del settore pubblico). Furthermore, the Parliament adopted a new law: Legislative Decree 33/2013, Reorganization of the regulations concerning the obligations of publicity, transparency and diffusion of information by public administrations (Decreto Legislativo 14 marzo 2013, n. 33, Riordino della disciplina riguardante gli obblighi di pubblicitá, trasparenza e diffusione di informazione da parte delle pubbliche amministrazioni) as amended by Legislative Decree 97/2016 Review and Simplification of Provisions on the Prevention of Corruption and Promotion of Transparency (Decreto Legislativo 25 maggio 2016, 97, Revisione e semplificazione delle disposizioni in materia di prevenzione della corruzione, pubblicità e trasparenza). It is meant to impose obligations of disclosure, transparency and dissemination of information by public administration. In practice, it has modified the existing set of rules, stating that the transparency needs to apply not only to information but also to records and documents held by the public administrations, with a primary goal of protecting the rights of citizens. Thus, according to Legislative Decree

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33/2013, as amended by Legislative Decree 97/2016, the public administrations are bound to publish all documents and data of collective interest on the institutional site under the section “Transparent administration”. In summary, the decree broadens the access right and, hence, thanks to what 2013 PSI Directive establishes as to the relationship between access and reuse, it enlarges the scope of the reuse as well (See Q12). Guidelines have been issued at national, regional and provincial level. For instance, the Agency for Digital Italy (AgiD) 705 published the Guidelines for the Development of the Public Information Heritage 2017.706

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

The Ministry for Public Administration and Simplification is responsible for implementation of the PSI Directive in Italy.

705 http://www.agid.gov.it/: website available only in Italian. The Agency for Digital Italy (Agenzia per l’Italia Digitale) is a Government agency responsible for the implementation of the Italian Digital Agenda under the surveillance of the Presidency of the Council of Ministers. The Agency supports public administrations in their effective use of ICT, improving quality of services and reducing costs. AgID has broad competences in e-Government, information society and technology innovation, including such areas as new generation networks, security, open standards, digital literacy, open data, digital inclusion, smart communities and digital health and education. 706 http://lg-patrimonio-pubblico.readthedocs.io/it/latest/index.html: website available only in Italian.

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implementing the PSI Directive apply to data covered by the national rules implementing the INSPIRE Directive?

National legislation implementing INSPIRE, legislative decree 2010/32 (Decreto legislativo 27 gennaio 2010, n. 32, Attuazione della direttiva 2007/2/CE, che istituisce un’infrastruttura per l’informazione territoriale nella Comunità europea (INSPIRE)) applies to spatial data set and spatial data services and rules over the exchange, sharing, access and reuse of those data. The national laws implementing the PSI Directive (legislative decree 36/2006 as amended by legislative decree 102/2015) apply to documents defined as the representation of acts, facts and data, irrespective of medium. Documents do not include computer programs. Thus, the scope of the data covered under the Italian legislation implementing the PSI Directive is wider than the scope of data covered under the Italian legislation implementing the INSPIRE Directive. The national rules implementing the PSI Directive apply to public sector bodies and bodies governed by public law. Public sector bodies defined as: - bodies of the State, the Regions, the autonomous provinces of Trento and Bolzano, local authorities and unions, consortia or associations thereof and other non-commercial public bodies. Bodies governed by public law defined as: - bodies, with legal personality, established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, financed, for the most part, by the State, or regional or local authorities, or other public sector bodies or bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by those public stakeholders. This shall not include public companies, as defined in Article 2(1)(b) of Legislative Decree No. 333 of 11 November 2003, implementation of Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings). The national law implementing the INSPIRE Directive applies to data held by or on behalf of any of the following: 1) a public authority: any public administration at national, regional or local level and other public bodies governed by public law; 2) any natural or legal persons person performing public administrative functions under national law, including specific duties,

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activities or services relating to the environment; 3) any natural or legal persons having public responsibilities or functions or providing public services relating to the environment or under the control of a body or person falling within 1) or 2); 4) a third party conducting activities relating to the environment. It should be noted that Article 1 of the law 2010/32 transposing the INSPIRE Directive does not apply to what regulated under the Italian legislation implementing the PSI Directive. Therefore, there are some differences in the scope. For example, the INSPIRE regulations can apply to natural persons, whereas the PSI regulations do not. However, there is a large degree of overlap. Thus, most bodies (e.g. national, regional and local administrations) to whom the INSPIRE legislation applies will also be bound by the PSI legislation.

No issues have been noted during this research. The scope of the Italian rules implementing the PSI Directive is broader than the scope of the Italian law implementing the INSPIRE Directive – at least, in regard to public bodies – the former applies even when, for any reason, the latter does not find application.

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Article 4 of the national rules implementing the PSI Directive, states that the Italian Copyright law applies to all documents that fall within the scope of the Italian PSI. Law 633/1941 on protection of copyright and of other rights associated with the exercise of copyright, as amended by Law 208/2015 and Law 8/2016, regulates copyright in Italy (Legge 633 del 22 aprile 1941, sulla protezione del diritto di autore e altri diritti connessi al suo esercizio, come modificata nel 2015 e nel 2016). In order to balance the author’s rights in his/her works with the public’s general right to freely access them, the Italian law provides for a number of limitations to an author’s rights. Indeed, reproduction of copyright protected content does not lead to a copyright infringement, if the act of copying is justified by legitimate reasons. The limitations and exceptions to copyrights include, inter alia, the use of the work under certain circumstances: - For private purposes (i.e. personal use only and not made for profit) - For the benefit of the general public, such as use for public speeches or other public communications - For education and information purposes. - Italian copyright law allows the private copying of phonograms and video-frames on any support, made by any individual for personal use only, provided it has not been made for profit, it does not have any direct or indirect commercial purpose and the technological measures implemented for protection are respected. If one of these requirements is met, the private purposes exemption is normally granted.

The national law transposing the Database Directive, legislative decree 169/1999 (Decreto Legislativo 6 maggio 1999, n. 169 Attuazione della direttiva 96/9/CE relativa alla tutela giuridica delle banche di dati), states that any insubstantial part of a database made available to the public may be re-used. Furthermore, the user can access and visualize the database (e.g. for educational or research purposes), without the author’s consent. However, permanent reproduction of substantial parts of a database shall always be subject to the rightholder’s authorization.

As a general rule, IP laws may either limit themselves, or be limited by other pieces of legislation. For example, Italian patent law, Legislative Decree 30/2005 (Decreto Legislativo 10 febbraio 2005, n. 30 Codice della proprietá industriale) does not recognize the patentability of scientific discoveries and obliges patent holders to publish the descriptions of their innovations. Likewise, as mentioned above in Q5, Italian copyright law (Law No. 633 of 22 April 1941) allows scientific publications to be re-produced and communicated only for educational purposes. Thus, these two inner limitations can be conceptualized as tools to promote access and non-commercial reuse of scientific content. Furthermore, for example “special rules”707 - such as Law 112/2013 quoted in Q8, that requires that outcomes of publicly funded research have to be accessible and reusable - can be regarded as outer boundaries of IP laws.

707 Special rules are rules which regulate special matters, that can establish a derogation from the general rule.

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Article 4, of the Law 112/2013 (Legge 7 ottobre 2013, n. 112, Disposizioni urgenti per la tutela, la valorizzazione e il rilancio dei beni e delle attività culturali e del turismo) concerning the valorisation of culture, imposes some obligations on public bodies, such as research institutions and universities, when they use public funds. These public bodies shall take the necessary measures for the promotion of open access to articles published in scientific periodicals (at least biannual), which are results of research projects at least 50% funded by public funds.

The Italian personal Data Protection Code, Legislative Decree 196/2003 (Decreto legislativo 30 giugno 2003, Codice in materia di protezione dei dati personali), refers to PSI containing personal data under Title IV – Processing Operations in the Public Sector, Chapter I – Access to Administrative Records, Sections 59 (Access to Administrative Records) and 60 (Data disclosing health and sex life) and Chapter II – Public Registers and Professional Registers, Section 61 (Use of Public Information). Legislative Decree 102/2015 on the re-use of public sector information, Article 3, states that it does not apply to documents containing personal data. Furthermore, Article 5 (Request to re-use documents) of the Decree, states that [...In cases where documents containing personal data are re-used, the data subject shall take out personalised licences, including standard licences].

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Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is On 15th April, 2014, the Italian DPA issued guidelines on the made available for re-use processing of personal data included in public sector documents.708 In particular, in paragraph 6 (limits to re-use of personal data) refers to PSI that contains personal data. The obligation to anonymise or pseudonymise PSI containing personal In the same guidelines mentioned above, the DPA states that the data before making it available for re-use (possibly including general principle of re-use of PSI does not apply to PSI containing methodologies or procedures for pseudonymisation or personal data, otherwise it concerns anonymised data (paragraph 6, anonymization) limit to re-use personal data). The obligation to conduct a data protection impact assessment or a The DPA guidelines on the processing of personal data included in similar risk assessment before making PSI containing personal data public sector documents, provide in paragraph 6, for a data protection available for re-use impact assessment with regards to personal data made available online on public administrations websites. The obligation to include data protection provisions in licenses for re- The Italian DPA guidelines on the processing of personal data included use of PSI containing personal data (e.g. including restrictions on the in public sector documents, paragraph 6 (mentioned above and in purposes of use of the PSI to ensure compatibility with the original footnote), provide for conditions on the re-use of documents. Among purposes) the terms, the DPA states that the licence for re-use should include a personal data protection clause when the re-use concerns personal data and also when the data to be re-used is personal data

708 http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/3134436#6: website available only in Italian.

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anonymised.

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis? Documents for which citizens or companies need to prove a particular No. interest to obtain access Documents relating to national security, statistical confidentiality or Yes. commercial confidentiality Documents the supply of which is an activity falling outside the public Yes. task Documents containing personal data Yes. Documents held by educational and research establishments (other Yes. than university libraries) and documents held by cultural establishments other than libraries, museums and archives Documents held by public service broadcasters and their subsidiaries Yes. Documents for which 3rd parties hold intellectual property rights Yes.

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

Article 3 of the PSI Directive is transposed into national law more or less identically. Both the link and relationship between the right of access and re-use seem clear. The national transposing legislation (Legislative Decree No. 102 of 18 May 2015) states that documents held by public

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sector bodies and bodies governed by public law as well as such documents already been disseminated for re-use are re-usable. Furthermore, the Digital Administrative Code (Decreto legislative 7 marzo 2005, n. 82, Codice dell’amministrazione digitale), Article 52, as amended by Legislative Decree 102/2015, defines access and re-use of data and documents held by public bodies. Public sector bodies publish on their websites, in a specific section named (Transparency Assessment and Merit), a list of data and documents and the regulations governing the exercise of the rights associated with electronic access and re-use.

Article 1, paragraph 2 of Legislative Decree 102/2015 states that the re-use of such documents must be in compliance with the provisions in Part II, Title II, Chapter III of Legislative Decree No 42 of 22 January 2004, Code of Cultural Heritage and Landscape (Decreto Legislativo 42/2004, Codice dei beni culturali e del paesaggio) and with the Italian Data Protection Code, Legislative Decree No 196 of 30 June 2003, Articles 122-127 on access to archives and privacy and Articles 101-103 on processing of personal data collected for historical purposes.

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No, the Italian law does not clarify it and the new guidelines of the Agency for Digital Italy (Agid), Guidelines for the Development of the Public Information Heritage 2017, (Linee Guida Nazionali per la Valorizzazione del Patrimonio Informativo Pubblico, 2017) 709 reproduced the text of the law. However, the new guidelines suggest that, when prices will be higher than marginal costs, the criteria to be followed to calculate them are those mentioned in the Commission Notice 2014/C-240/01710. In addition, the new guidelines, referring back to the 2014 guidelines711, suggest the business models that could be implemented, such as freemium, dual licensing, sponsorship, or crowdfunding.

709 http://lg-patrimonio-pubblico.readthedocs.io/it/latest/: website available only in Italian. 710 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014XC0724(01)&from=EN. 711 http://www.agid.gov.it/sites/default/files/linee_guida/patrimoniopubblicolg2014_v0.7finale.pdf, p. 87.

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How is the making transparent and public of such arrangements controlled, and by whom? Does national law (or guidance) provide any clarity regarding what “reviewing” the duration of exclusivity (under Article 11(2a)) actually entails in practice?

In Italy arrangements granting exclusive rights for digitisation of cultural resources exist and are regulated by national law transposing the Directive, Article 11, paragraph 1bis, Legislative Decree 36/2006 as amended by Legislative Decree 102/2015. Furthermore, exclusive rights for digitisation of cultural resources are defined by decree of the Minister of Cultural Heritage and Activities and Tourism, having heard the opinion of the Agency for Digital Agency. Such arrangements have to be published on the data subject’s website. National law states that the period of exclusivity shall not, in any case, exceed 10 years, notwithstanding the possibility of a longer duration subject to review during the 11th year and every 7 years thereafter. In practice, this seems to limit the right of access and re-use of data and documents.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) No.

“disproportionate effort” (Art 5(2)) No.

Q17. Dynamic data / APIs Are there any requirements on public bodies or bodies governed by public law (or some of these bodies) to do the following, in respect of

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public sector information (or some of this information)?

(a) published online in their original, unmodified form to Article 52, CAD (Digital Administrative Code) as amended by Legislative ensure timely release Decree 102/2015, states that public sector bodies publish data and documents on their websites.

(b) published and updated frequently at the highest There is no a specific requirement. However, on the basis of Guidelines for possible level of granularity to ensure completeness the Development of the Public Information Heritage 2017, AgiD, data should and accuracy be updated frequently.

(c) published and maintained at a stable location, On the basis of Article 52, CAD (Digital Administrative Code) public sector preferably on the highest organisational level within bodies publish the list of data and documents than can be accessed and re- the administration, to ensure easy access and long- used in a specific section of their websites. Furthermore, see Q18. term availability

(d) published in machine-readable and open formats (CSV, Data published by public sector bodies when published without using a JSON, XML, RDF, etc.) to enhance accessibility licence, should be considered open data (Article 52, CAD). The Agency for Digital Italy (AgiD) updates at least once a year a list of open formats that can be used in public sector bodies (Article 68, CAD). There is no an obligation to publish PSI in machine-readable format, but where possible and appropriate the machine-readable format shall be preferred (Article 9, legislative decree 102/2015, Guidelines for the Development of the Public Information Heritage 2017, AgiD).

(e) described in rich metadata formats and classified PSI are made available with corresponding metadata to facilitate according to standard vocabularies (DCAT, EURO VOC, understanding, access and re-use of data (Article 9, legislative decree ADMS, etc.) to facilitate searching and interoperability 102/2015 and Guidelines for the Development of the Public Information Heritage 2017, AgiD).

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(f) accessible as data dumps (massive outputs of data) as There is no a specific requirement, but on the basis of Guidelines for the well as through application programming inter faces Development of the Public Information Heritage 2017, AgiD), data shall be (APIs) to facilitate automatic processing accessible through APIs.712

(g) accompanied by explanatory documents on the The national open data portal dati.gov.it includes metadata having the metadata and controlled vocabularies used, to following profile: DCAT-AP_IT. Guidelines for the Development of the Public promote the interoperability of databases Information Heritage 2017, AgiD and see answer to point e) above.

(h) subject to regular feedback from re-users (public No, but AgiD Guidelines 2017 describe a feedback mechanism under the consultations, comments box, blogs, automated Roles and responsibilities section (Ruoli e responsabilità). In particular, the reporting, etc.) to maintain quality over time and Guidelines describe the (Referente tecnico della banca dati) as the IT expert promote public involvement who materially receives the citizens’ reports on the dataset and may send them to the thematic referent / domain expert (Referente tematico della banca dati) in order to evaluate their content, before asking the data processor’s approval for any structural corrective actions on the dataset.

712 http://lg-patrimonio-pubblico.readthedocs.io/it/latest/publdatigov.html?highlight=api: website available only in Italian.

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The national open data portal (dati.gov.it)713 managed by the Agenzia per l’Italia Digitale (AgiD) is the national tool to search for open-format data published by public sector bodies, as provided for by Article 9 Legislative Decree 102/2015.

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? First and foremost, AgiD Guidelines for the Development of the Public Information Heritage 2017 suggest that public bodies offer their data for free. Secondly, in cases where they want to ask for reproduction, provision and dissemination costs, the AgiD suggests that public bodies follow the criteria and rules set forth in the Communication Notice 2014/c-240/01. In such cases, the AgiD should determine and publish on its website those charges which are calculated and proposed by the data holder. Finally, in relation to the charging exception, the AgiD refers to the above-mentioned business models as available options. In addition, the competent ministries, namely, the Minister of Cultural Heritage and Activities and Tourism and the Minister of Economic Affairs and Finance, in agreement with AgiD, should determine, through a decree, the general criteria for the charges and the corresponding payment methods. This decree must be updated every two-years.

Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

713 https://www.dati.gov.it/: website available only in Italian.

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No, the Italian legislation implementing the PSI Directive as well as the AgiD Guidelines for the Development of the Public Information Heritage 2017 do not specify the scope of the charging exception. As explained in Q19, the criteria and the payment methods are determined by the AgiD on the basis of a proposal from the data holder.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

Neither the Italian legislation implementing the PSI Directive nor the AgiD Guidelines for the Development of the Public Information Heritage 2017 include any clarifications. As explained in Q19, the criteria and the payment methods are decided by the AgiD on the basis of a proposal from the data holder.

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

No, the Italian legislation implementing the PSI Directive and the AgiD Guidelines for the Development of the Public Information Heritage 2017 did not introduce any further specifications.

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For instance, the Freedom of Information Act, Legislative Decree 97/2016, Article 5bis provides that a request of access can be refused to avoid the prejudice to a particular public interest (public order, public security, international relations, etc.) or private interests (personal data).

The national law transposing the Directive states that in the event of refusal, the owner of the information shall inform the applicant of the available means of appeal against the decision in accordance with Legislative Decree 104/2010 as amended in 2017, Code of the Administrative Process (Decreto legislativo 2 luglio 2010, n. 104 aggiornato, Codice del processo amministrativo). The national law transposing the Directive does not specify how the appeal system works but rather it refers to the national law which describes the administrative

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procedure. As provided by Legislative Decree 97/2016 (Freedom of Information Act), the applicant may request the responsible public body (Responsabile della prevenzione della corruzione e della trasparenza)714 to review the decision. This authority shall decide on the request within 20 days. In case the refusal came from local or regional entities the appeal shall be presented to the competent Ombudsman (Difensore civico). This body shall make a decision within 30 days of the presentation of the appeal. If the Ombudsman considers the refusal unlawful it shall inform the applicant and the competent public body. If the public body does not confirm the refusal or does not take any actions within a period of 30 days, access is allowed. As a general rule, against refusals by public bodies, the applicant may present an appeal to the competent Regional Administrative Tribunal (TAR), as provided by Article 116, Legislative Decree 104/2010. Currently, the Parliament is working on a new law reforming the CAD for the creation of one single national Ombudsman (Difensore civico).

Article 7 has been partly transposed into national legislation. In particular, paragraphs 1 and 2 are not transposed.

714 http://www.interno.gov.it/it/amministrazione-trasparente/altri-contenuti-prevenzione-corruzione/responsabile-prevenzione-corruzione-e-trasparenza: website available only in Italian.

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Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

No.

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There is no publicly available information, while writing this report.

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Poland Country: Poland Author: Natalia Mileszyk, Katarzyna Strycharz Date: 20 December 2017

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (e.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

Rules on the re-use of public sector information were implemented into Polish law in 2011 (Ustawa z dnia 16 września 2011 r. o zmianie ustawy o dostępie do informacji publicznej oraz niektórych innych ustaw - Act amending the Act on Access to Public Information and some other laws, Journal of Laws of 2011, No. 204, Item. 1195).715 From 29.12.2011 to 15.06.2016, the rules governing the re-use of public sector information were regulated in Chapter 2a of the Act on Access to Public Information, hereinafter: Act on Access to Public Information (Ustawa o dostępie do informacji publicznej, Journal of Laws of 2001 No. 112, item. 1198).716 At that time, alongside the right of access to public information under the Act on Access to Public Information, a new right to the re-use public information began to exist.

715 http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20112041195/U/D20111195Lj.pdf. 716 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20011121198.

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The required deadline for implementing the PSI Directive (required by Article 2(1) of the Directive) has not been complied with. Directive 2013/37/EU was transpoed by adoption of the Act of 25 February 2016 on the re-use of public sector information717 – Ustawa z dnia 25 lutego 2016 o ponownym wykorzystywaniu informacji sektora publicznego, Journal of Laws of 2016 No. 352, (hereinafter: Re-use Act). Together with the Act, the minister responsible for culture and national heritage protection issued a Regulation on 5 July 2016 on the maximum rates of charges for re-use imposed by state museums and self-governing museums (Rozporządzenie Ministra Kultury i Dziedzictwa Narodowego z dnia 5 lipca 2016 r. w sprawie maksymalnych stawek opłat za ponowne wykorzystywanie informacji sektora publicznego nakładanych przez muzea państwowe i muzea samorządowe, Journal of Laws of 2016, No.1011).718 The new law repealed the provisions on re-use from the Act on Access to Public Information, and introduced conflict-of-law rules defining the relationship between these two laws. In 2014, 16 entities and 5 individuals presented their opinion on draft provisions of Act on the re-use of public sector information. As part of subsequent consultations in 2015, the opinion was expressed by 48 entities (NGOs, individuals and public entities).719 The main doubts raised during public consultations concerned the separation of provisions on re-use from the Act on Access to Public Information, the scope of the proposed Act, and the difficulty of proper interpretation of certain concepts (e.g. the definition of "public sector information" – please see the legal opinion of the Parliamentary Analyses Office – Biuro Analiz Sejmowych)720. Due to the fact that the law has only been in force for a short time, there are only few judgments of the courts directly related to the law. In addition, the possibility of adjudication in this regard has been limited by the transitional provisions as referred to in Article 38 (1) Re-use Act. According to transitional provisions, the existing provisions (Act on Access to Public Information) shall apply to cases relating to public

717 http://dziennikustaw.gov.pl/du/2016/352/1. 718 http://dziennikustaw.gov.pl/du/2016/1011/1. 719 The consultations are to be found here: https://legislacja.rcl.gov.pl/projekt/220632/katalog/220633#220633, last accessed 05/12/2017. 720 http://www.sejm.gov.pl/sejm8.nsf/opinieBAS.xsp?nr=141.

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information made available for re-use in which a final or binding decision was not issued at the date of entry into force of the Re-use Act (16 June 2016). In September 2016, the Ministry published ministerial resolution No. 107/2016 "Program for opening public data" (“Program otwierania danych publicznych” - Uchwała Nr 107/2016 Rady Ministrów z dnia 20 września 2016 r).721 The attachments to the program define the standard of data sharing on danepubliczne.gov.pl and the schedule of opening selected data and making them available on danepubliczne.gov.pl. The Ministry of Digitisation has issued a manual - commentary on the Re-Use Act (Ponowne wykorzystywanie informacji sektora publicznego, Ministerstwo Cyfryzacji, Warszawa 2016)722, which was developed in cooperation with the Institute of Legal Studies of the Polish Academy of Sciences, and experts.

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

The Ministry of Digital Affairs (in the years 2011-2015, the Ministry of Administration and Digitisation).723 The Minister of Culture and National Heritage was responsible for the implementation of the regulation on the maximum rates of charges for re-use imposed by state museums and self-governing museums.

721 http://mc.bip.gov.pl/programy-realizowane-w-mc/programu-otwierania-danych-publicznych.html, last accessed 05/12/2017. 722https://www.gov.pl/documents/31305/0/ponowne_wykorzystywanie_informacji_sektora_publicznego_-_podrecznik.pdf/dbcc1070-efd6-85d1-cf22-81df4e87b48a. 723 https://www.gov.pl/cyfryzacja/, last accessed 05/12/2017.

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Q3. Please describe where your national legal frameworks implementing the INSPIRE Directive and the PSI Directive create synergies in terms of access / accessibility / Re-use of public sector data? In particular, with regard to the scope of the rules: do the national rules implementing the PSI Directive apply to data covered by the national rules implementing the INSPIRE Directive?

There is a lack of synergy in terms of access / accessibility / re-use of public sector data between the Act of 4 March 2010 on Spatial Information Infrastructure (Ustawa z Dnia 4 marca 2010 o Infrastrukturze Informacji Przestrzennej, Journal of Laws of 2010, No. 76, Item 489)724 (implementation of the INSPIRE Directive) and the Re-use Act (implementation of the PSI Directive). National rules implementing the PSI Directive (Re-use Act) do not refer directly to the rules implementing the INSPIRE Directive (the Act of 4 March 2010 on Spatial Information Infrastructure). There is only a general conflict rule (Article 7 (1) Re-use Act) which can be applied to the Act on Spatial Information Infrastructure. According to this provision, the Re-use Act takes effect without prejudice to the right to access public information, to the freedom to disseminate public information, or to other acts laying down the rules, conditions and procedure for accessing information constituting public sector information.

724 http://dziennikustaw.gov.pl/du/2010/s/76/489.

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Q4. Have any issues arisen with regard to the implementation of the INSPIRE Directive in relation to the national legal framework implementing the PSI Directive in your Member State, which may lead to: ● Less sharing among public bodies with respect to spatial data; ● Issues with availability of spatial data for re-use or with the conditions for re-use; ● Less likelihood of data being available in a usable format.

Not discovered whilst conducting this research.725

725 A case which might be of interest here, but is not directly related to the implementation of INSPIRE Directive occurred on the basis of Geodetic and cartographic law (Prawo geodezyjne i kartograficzne, Journal of Laws of 1989 No 30 Item 163, http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19890300163). According to the Judgment of the Supreme Administrative Court of 12 September 2013 (IOSK 777/13#], http://www.lexlege.pl/orzeczenie/147277/i-osk-777-13-wyrok-naczelny-sad- administracyjny/), geodetic and cartographic law introduces the principle of remuneration for access to data, information and materials contained in state geodetic and cartographic resources. It is therefore a principle that differs from the general principle of free access to public information, as expressed in Article 7. 2 of the Act on Access to Public Information, which speaks about free access. Resulting from the provision of Article 40. 3c. (Geodetic and cartographic law), the principle of remuneration for access to information contained in state geodetic and cartographic resources, as a statutory principle, cannot be excluded by Article 7 (2) of the Law on access to public information, which means that data from the state geodetic and cartographic resources cannot be made available free of charge either in the ordinary course of access to public information or in the context of access for re-use.

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Yes, copyright protection can be excluded for reasons of public interest. According to Article 4 of the Act of 4 February 1994 on Copyright and related rights (Ustawa z dnia 4 lutego 1994 o prawie autorskim i prawach pokrewnych, Journal of Laws of 1994, No 24, Item 83, hereinafter: Copyright Act726), the following types of information are excluded from copyright protection: 1) legislative acts and their official drafts; 2) official documents,727 materials,728 logos and symbols; 3) published patent specifications and industrial design specifications; 4) simple press information. The justification for introducing this provision (especially points 1 and 2) was directly connected to public interest.

726 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19940240083. 727 There is no legal definition of official documents and materials in Copyright Act. However, the definition of an official document is included in the Code of Civil Procedure (Article 244 paragraph 1, Kodeks Cywilny, Journal of Laws of 1964, No 16, Item 83) and in the Code of Administrative Procedure (Article 76 paragraph 1, Kodeks Postepowania Administracyjnego, Journal of Laws of 1960 No 30 Item 168). Accordingly, “official documents” are considered to officially certify their content, as long as they maintain the required form and are established by the state institutions acting within their scope of competency. And on the basis of copyright law, it is recognised that an official document is a document issued in the required form by the state bodies appointed for this purpose in their field of activity. It provides evidence of what has been officially stated or certified in it. The document is a qualified form of official materials, because it should be issued in the appropriate form, by the competent authority, state the existence of a specific event, the existence of a right, impose obligations, settle a dispute. Moreover, in the subject literature it is recognised that the official documents fall within the scope of official materials. According to the case law, official documents constitute a rather broad category including e.g. certificates, bank statements, administrative decisions, official explanations, circulars, internal regulations. The category of official material will include all intangible assets created or officially approved by the public authorities. 728 The definition of official material is less precise compared to official documents. It is generally accepted that official materials are all materials that can be assigned or originated from the office to the extent that they operate in the imperial domain (judgment of the Supreme Administrative Court of February 19, 1997, I SA / Kr 1062/96, Lex 29303). This group includes primarily: official justifications for legal acts, opinions of statutory auditors, appraisal reports, printed templates, templates of letters, legal reports, complaints and applications submitted by citizens, reports. In a ruling issued by the Supreme Court on 26 September 2001 (Supreme Court Judgment of 26 September 2001, IV CKN 458/00), it was stated that "unless the concept of an official document is strictly defined, the concept of official material is extremely capacious.” For this reason, e.g. the questionnaire that is used for the driving test as a result of the official procedure was classified as an official material. The doctrine and jurisprudence indicate the difficulties of interpretation in the distinction between the terms "official document" and "official material". Property valuation was recognised

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According to the case law, there is a liberal approach to the scope of the concept of legislative acts and their official drafts. For example, the regulations of the local telephone service (Judgment of the Constitutional Tribunal of July 7, 1989 U 15/88, OTK 1989, pp. 138-151),729 spatial development plans (Supreme Court ruling of 25.10.1972 OSPiKA 1975r. No. 9, item. 203), the NBP governor's ordinances and the circulars letters and instructions from the Minister of Finance were included in this category. In the case law, the issues of qualifying opinions and legal expertise to the category of official materials and the mutual relationship between Art. 1(1) Act on Access to Public Information and Art. 4 Copyright Act are contentious to the extent that copyright protection is restricted because of public information. These issues were addressed in the Supreme Administrative Court's judgment of 27 January 2012 (IOKK 2130/11, Lex 1126276).730 In this case, the plaintiff complained about the Chancellery of the President of the Republic of Poland’s failure to act regarding the disclosure of public information - legal (expert) opinions that were the basis for the Polish President to take decisions on signing the Act. The Supreme Administrative Court stated that public information only consists of objective data or facts. Legal expertise is not public information unless it concerns a specific Act that is already the subject of an ongoing legislative process. Instead, legal expertise is an internal document used to collect information that may be used in the decision-making process in the future. The Court also assessed the expert opinions and opinions on a specific draft legal Act: while the legislative process is underway, such documents should be considered as public information. At the same time, the Court noted that opinions and expert opinions prepared by specialised persons or entities corresponded to the statutory definition of a work specified in the Copyright Act. According to Art. 4(2) of Copyright Act, official documents, materials, signs and symbols are not subject to copyright. According to the Supreme Administrative Court, opinions and expertise issued at the request of the Chancellery of the President of the Republic of Poland are official materials within the meaning of Art. 4(2) of the above Act. They perform a both as an official document and official material (judgment of the Administrative Court in Gdańsk dated February 21, 2006, II SA / Gd 897/05, ONSA WSA 2007, No. 2, item 41, judgment of the Administrative Court in Opole from 17 January 2008, II SAB / Op, Lex 505255). It is assumed that the concept of official material is broader and contains an official document. 729 No links to the judgment is available. In Poland, the judgments of the courts are rarely published. They are collected and distributed to law professionals in a form of a database on a CD, regularly updated, yet no available online. 730 http://orzeczenia.nsa.gov.pl/doc/9B0E75BB3F.

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subordinate role in the decision-making process by the highest executive body and are not subject to copyright. The requirement of effectiveness of social control and the need to ensure that information serves directly the tasks entrusted to the public authority also speak to this understanding of mutual relations between Art. 1(1) of the Act on Access to Public Information and Art. Article 4 of the Copyright Act.

Not to our knowledge, apart from exceptions provided in the Database Directive which were transposed into Polish law. According to Article 7(1) of the Act of 27 July 2001 on the Protection of Databases (Ustawa z dnia 27 lipca 2001 o ochronie baz danych, Journal of Laws of 2001 No 128 Item 1402)731, “the maker of a database made in any manner available to the public may not prohibit the lawful user of such a database from extracting or re-utilising any insubstantial part, evaluated qualitatively and/or quantitatively, of the database for any purpose whatsoever.” According to Article 8(1) Act on the Protection of Databases “it shall be permitted to utilise the substantial part, evaluated qualitatively and/or quantitatively, of the contents of the database that has already been distributed: 1) for personal use, but only with respect to the non-electronic contents of the database; 2) as an illustration, for didactic or research purposes, with the indication of its source, if such use is justified by the non-commercial purpose to be achieved; and 3) for the purposes of public safety, or legal or administrative proceedings.

731 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20011281402.

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No, except that scientific facts and the results of scientific research are not subject to copyright protection. It is pointed out that factual findings are not created, but only discovered or disclosed. Such arrangements do not meet the individual requirement because, on the basis of available materials, sources, observations and research, as well as experience, another researcher is able to discover the same facts. In the judgment of the Supreme Court of 24 November 24 (I CR 185/78, LexPolonica No. 318324), it was pointed out that copyright law at that time did not provide - when it came to scientific works - self-constructed protection of scientific discoveries (scientific truths). They are protected only as part of the protection of the scientific work whose content they constitute. This view - although it was expressed on the basis of the Copyright Act of 1952 - did not lose its relevance. Moreover, the Supreme Court in its judgment of 19 November 1982 (II CR 460/82, OSNC 1983, No. 7, item 100) expressed the opinion that such information is not subject to copyright protection.

No, there are no national rules that regulate or affect the access and re-use of data held by public research and educational institutions. Public research and educational institutions are obliged only to make available or provide for re-use e.g. information on their legal status or legal form, subject matter of activities, competences, bodies and persons exercising their functions and competences on the Public Information Bulletin (Art. 4.1.3, 4.1.4., 4.1.5. Re-use Act).

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Moreover, in a 2017 letter, the Minister of Science and Higher Education asked the heads of scientific units and the authorities of universities to implement the recommendations from the Ministry of Science and Higher Education for open access. The above-mentioned recommendations are contained in the document "Directions for development of open access to publications and research results in Poland" (“Kierunki rozwoju otwartego dostepu do tresci naukowych w Polsce”).732 The document serves as a guideline for research funding bodies, research institutions, universities and publishers, including publishers of scientific journals, to introduce open access. According to Article 176(b)(1) Act of 27 July 2005 Law on Higher Education (Ustawa z dnia 27 lipca 2005 r. Prawo o szkolnictwie wyższym, Journal of Laws, 2005 number 164 item. 1365),733 the Minister for Higher Education runs a nationwide repository of written diploma theses. The repository includes, among others, the content of the diploma theses. The data made available as part of the repository is introduced by the university's deans to the POL-on System.734 Access to the data is available to the thesis supervisor and Polish Accreditation Committee.

732 https://www.nauka.gov.pl/g2/oryginal/2015_08/41b82999405fd87c97df323fec4f1c8e.pdf. 733 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20051641365. 734 POL-on is an integrated information system on science and higher education, which supports the work of departments of the Ministry of Higer Education, as well as the Central Commission on Degrees and Titles, https://polon.nauka.gov.pl/.

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No, there are no specific provisions in national data protection law (Data Protection Act of 29 August 1997, Ustawa z dnia 29 sierpnia 1997 o ochronie danych osobowych, Journal of Laws of 1997 No 133 Item 883)735 in relation to PSI that contains personal data. The only provision in Polish PSI legislation referring to personal data is Art. 7.2 Re-Use Act stating that the “provisions of the Act do not violate the provisions of the Data Protection Act of 29 August 1997”. The privacy of individuals can be one of the reasons to limit the right to PSI (Art. 6.2 Re-use Act). The right to re-use is limited by the privacy of the individual or business secret. This limitation does not apply to information about persons performing public functions related to the performance of these functions, including the conditions of entrusting and performing functions, and in case a person or entrepreneur opts- out.

Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is No. made available for re-use

The obligation to anonymise or pseudonymise PSI containing personal No. data before making it available for re-use (possibly including However, in “The limitation of the right to Re-Use PSI”, in “Re-Use of methodologies or procedures for pseudonymisation or

735 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19971330883.

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anonymisation) PSI” (“Ograniczenia prawa do ponownego wykorzystywania ISP”, in “Ponowne wykorzystywanie informacji sektora publicznego”)736, on page 74, it is claimed that in the case of re-use it should be assumed that anonymisation is the first of means of protecting privacy. Anonymisation is therefore a method for both user applications and proactive publishing of PSI by the institution. This publication is a scientific commentary commissioned by the Ministry of Digital Affairs.

The obligation to conduct a data protection impact assessment or a There are two articles written by data protection authorities which similar risk assessment before making PSI containing personal data refer to the obligation to conduct a data protection impact available for re-use assessment or a similar risk assessment before making PSI containing personal data available for re-use, but they are not in the form of guidelines: - The Commentary of the General Supervisor for Personal Data on the following draft laws: The law amending the Law on access to PSI, and the Law on Re-Use of PSI, in “Re-Use of Public Sector Information in Administration” (“Komentarz Generalnego Inspektora Danych Osobowych na temat projektów: ustawy o zmianie ustawy o dostępie do informacji publicznej oraz niektórych innych ustaw oraz ustawy o ponownym wykorzystaniu informacji sektora publicznego” i

736 https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora-publicznego, last accessed 06/12/2017.

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“Ponowne wykorzystywanie informacji sektora publicznego w administracji”)737 - this publication is a scientific commentary commissioned by the Senate of Poland. - “The limitation of the right to Re-Use PSI”, in “Re-Use of PSI” (“Ograniczenia prawa do ponownego wykorzystywania ISP”, in “Ponowne wykorzystywanie informacji sektora publicznego”)738 - this publication is an academic commentary commissioned by the Ministry of Digital Affairs. The obligation to include data protection provisions in licenses for re- No. use of PSI containing personal data (e.g. including restrictions on the purposes of use of the PSI to ensure compatibility with the original purposes)

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis?

Documents for which citizens or companies need to prove a particular No. However, the right to re-use of public sector information can be

737 https://www.senat.gov.pl/gfx/senat/userfiles/_public/k9/agenda/seminaria/2016/160621/ponowne_wykorzystanie.pdf , last accessed 06/12/2017. 738 https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora-publicznego, last accessed 06/12/2017.

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interest to obtain access limited if the access to this information is limited by other laws (Article 6.3. Re-use Act). It is impossible to specify an exhaustive catalogue of such documents. The list below provides some examples of the pieces of legislation that in some circumstances limit access to public sector information: Ministry guidelines739 indicate as examples provisions of Act of 17 May 1989 - Geodetic and cartographic law (Journal of Laws of 2015, item 520, as amended), Law of 28 November 2014 - Law on civil status records (Journal of Laws, item 1741, as amended), Act of 20 June 1997 - Road Traffic Law (consolidated text: Journal of Laws of 2012, item 1137, as amended), Act of 24 September 2010 on the population register (consolidated text: Journal of Laws of 2016, item 722, as amended).

Documents relating to national security, statistical confidentiality or No, but national security, statistical confidentiality or commercial commercial confidentiality confidentiality can be one of the reasons to limit the right to re-use of PSI (Art. 6.1. and 6.2. Re-use Act).

Documents the supply of which is an activity falling outside the public No, but the activity falling outside the public task can be one of the task reasons to limit the right to re-use of PSI (Art. 6.4.1. Re-use Act). Uncertainty arises in the absence of a legal definition of “public task”

739 Agnieszka Piskorz-Ryń / Marlena Sakowska-Baryła [w:] Ponowne wykorzystywanie informacji sektora publicznego, Ministry guidelines o the Re-Use of the PSI, Ministerstwo Cyfryzacji, Warszawa 2016, p. 51, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora-publicznego.

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in the Polish legal system. For this reason, it is sometimes difficult to determine which activity falls outside of the scope of a “public task”. In “Re-use of public sector information” (“Ponowne wykorzystywanie informacji sektora publicznego”) issued by the Ministry of Digital Affairs in 2016 740 it is indicated that when information is not produced for public purposes, it can be excluded from re-use.

Documents containing personal data No, only privacy of individuals can be one of the reasons to limit the right to PSI (Art. 6.2 Re-use Act), but documents containing personal data are not generally excluded.

Documents held by educational and research establishments (other Yes, those documents are excluded from the scope of the Re-use Act, than university libraries) and documents held by cultural unless a document concerns public sector information to be made establishments other than libraries, museums and archives available on the Public Information Bulletin, e.g. information on their legal status or legal form, subject matter of activities, competences, bodies and persons exercising their functions and competences (Article 4.1.2. and 4.1.3 Re-use Act.)

Documents held by public service broadcasters and their subsidiaries Yes, those documents are excluded from the scope of the Re-use Act,

740 Marlena Sakowska-Baryła [w:] Ponowne wykorzystywanie informacji sektora publicznego (“Re-use of public sector information”), Ministerstwo Cyfryzacji, Warszawa 2016, p. 99-102, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne- wykorzystywanie-informacji-sektora-publicznego, last accessed 12/12/2017

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unless a document concerns public sector information to be made available on the Public Information Bulletin, e.g. information on their legal status or legal form, subject matter of activities, competences, bodies and persons exercising their functions and competences (Article 4.1.1. Re-use Act)

Documents for which 3rd parties hold intellectual property rights No, but a third party intellectual property right can be one of the reasons to limit the right to re-use of public sector information (Article 6.4.3. and 6.4.4. Re-use Act) For example, re-use is excluded when an obliged entity referred to in Article 3 Re-use Act has a licence to use the document without the permission to grant a sub-licence. The obliged entity cannot transfer more rights than he or she has.

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

Right of re-use is framed in Polish law as following (Art. 2.2 Re-Use Act): Re-use is understood as the use of any public sector information by natural persons, legal persons and organisations without legal personality, for commercial or non-commercial purposes, other than the original public purpose for which the information was generated.

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The Act contains some links to right to access, yet in practice there is some degree of legal uncertainty. Art. 32 Re-use Act, which introduces amendments to the Act on Access to Public Information adjusts the existing procedure to the new re-use scheme. Article 32(4) of the Re-Use Act amends Article 9(a) of the Act on Access to Public Information. As a result, public information of special importance to the development of innovation in the state and the development of society information which, due to the manner of storage and sharing, can be re-used in a useful and effective manner, constitutes a collection, called an "information resource", and is made available in the central repository. According to Article 5.1 Re-Use Act, everyone has the right to re-use PSI made available in the tele-information system, in particular on the website of the Public Information Bulletin (BIP) of the obliged entity or in the central repository of public information,741 referred to in Art. 9a and 9b of the Act on Access to Public Information.

741 https://danepubliczne.gov.pl/.

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Alternatively, is there any guidance published by the CHI themselves, such as the national archives?

No, the general rule is that if the institution was not a primary owner of copyright to a document, and the document is not yet in public domain, access to the document can be denied (Art. 6.4.4. Re-use Act). There is no guidance regarding documents for which libraries (including university libraries), museums and archives hold intellectual property rights and the re-use of such documents. In case of cultural heritage institutions, documents that are works protected by copyright are excluded from re-use if the library, museum or archive is not the ‘original owner’ of commercial copyrights and the duration of these rights has not expired. According to the Copyright Act, cultural heritage institutions may be the original owner of copyright for two categories of works: 1) as an employer for computer programs created by a lawyer as a result of performing duties resulting from an employment relationship (Article 74.3 Copyright Act); 2) as a producer or publisher for collective works, in particular an encyclopedia or periodic publication (Article 11 Copyright Act). In relation to related rights, the institution of cultural heritage may be the original owner of related rights in relation to: 1) a phonogram and a videogram - as a producer (Article 94 Copyright Act); 2) programs broadcasts - as a radio or television organisation (Article 97 Copyright Act); 3) first editions - as a publisher (Article 99.1 Copyright Act). In practice, situations where cultural heritage institutions are the original owner of copyright or related rights are rare. The provisions of agreements between entities obliged to disclose public sector information and owners of intellectual property rights with regard to the admissibility of disclosure for re-use will be of key importance. If the copyright owner consents to re-use, then there is no obstacle to such action. On the other hand, the lack of authorisation by the owner is the basis for restricting access to public sector

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information and issuing a decision refusing it to be made available for re-use.

Yes. The amount that cultural heritage institutions can charge for re-use (including “reasonable rate of return”) is regulated by the Regulation of the Minister of Culture and National Heritage of 5 July 2016 on maximum rates of charges for re-use of public sector information imposed by state museums and local government museums (Rozporządzenie Ministra Kultury i Dziedzictwa Narodowego z dnia 5 lipca 2016 r. w sprawie maksymalnych stawek opłat za ponowne wykorzystywanie informacji sektora publicznego nakładanych przez muzea państwowe i muzea samorządowe, Journal of Laws of 2016, item 1011).742 There is no explanation as to what this reasonable return on investment means, but the Regulation limits its amount, stating that a reasonable return on investment is to be no more than 5 percentage points above the reference rate of the National Bank of Poland (Article 18(2) Re-use Act). The regulation also sets maximum rates. However, in practice some uncertainty might still arise.

742 http://dziennikustaw.gov.pl/du/2016/1011/1, last accessed 06/12/2017.

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According to Article 9(2) Re-use Act, exclusive arrangements are allowed if a correct performance of public tasks requires the right of other users to use public sector information to be limited. It is an entitlement, not an obligation. And the possibility of concluding such an exclusive agreement is not limited to cultural resources. All arrangements granting exclusive rights shall be published on Public Information Bulletin (BIP) of certain cultural heritage institution (Article 11(1)(5) Re-Use Act). The information provided on the arrangement shall include not only the document, but also the reasoning behind such an arrangement. There is no national unified register of such agreements, but they are made publicly available as mentioned above. Each institution granting such an agreement must evaluate annually if the reasons for granting the agreement are still in place (Art. 9.3 Re-Use

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Act). Lastly, there are no mechanisms controlling the transparency of such arrangements / ensuring they are sufficiently public.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) No, the legislator does not explain what should be understood by the term "if possible" (term used instead of “where possible and appropriate”). According to Article 10.1. Re-use Act, obliged entities which make available or provide for re-use public sector information using IT systems shall use data formats, and communication and encryption protocols specified in provisions issued under Article 18.1. of the Act of 17 February 2005 on the computerisation of activities of entities performing public tasks (Ustawa z dnia 17 lutego 2005 r. o

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informatyzacji działalności podmiotów realizujących zadania publiczne, Journal of Laws 2005 no 64 item 565)743, if possible in a machine-readable format, together with metadata.

“disproportionate effort” (Art 5(2)) The law does not provide information on what “disproportionate effort” means. According to guidance provided in a commentary issued by the Ministry of Digitisation,744 “the work to be performed by the PSB must be more or less equivalent to a simple operation. The transfer of PSI for re-use should not distract the administration from its basic tasks, whether in terms of time, human resources, or allocated funds (...) The concept of a “simple operation” should be understood as easy, simple, carried out daily, without the need for significant costs, the involvement of essential resources, the workload or the time devoted to its execution. This issue should be assessed on a case-by-case basis, depending on the hardware, software and competence of the employees of an obliged entity”. (“Re-use of public sector information”, “Ponowne wykorzystywanie

743 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20050640565. 744 Mariusz Maciejewski [in:] Ponowne wykorzystywanie informacji sektora publicznego, Ministerstwo Cyfryzacji, Warszawa 2016, p.117 , https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora-publicznego.

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informacji sektora publicznego”, Ministerstwo Cyfryzacji, Warszawa 2016, page 117-118745) According to the judgment of the District Administrative Court in Szczecin dated 11.12.2013, II SA / Sz 826/13 on Art. 3.1.1 Act on Access to Public Information, which relates to Art. 10.2. Re-use Act “in certain circumstances, the extent of the exercise of the right to public information relating to the satisfaction of the interest of the party requesting access to public information may be such as to justify the recognition of the requested information as public information of a processed nature. This situation occurs when the amount of activities required by the obliged entity to provide public information will reach a level which may disrupt the work of this entity”.

745 https://www.gov.pl/documents/31305/0/ponowne_wykorzystywanie_informacji_sektora_publicznego_-_podrecznik.pdf/dbcc1070-efd6-85d1-cf22-81df4e87b48a.

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(a) published online in their original, unmodified form to ensure The Regulation of the Minister of Administration and Digitisation of 26 timely release March 26 2014 regarding the information resource intended for sharing in the Central Repository of Public Information, Journal of Laws of 16/04/2004, No Item 491 (Rozporządzenie Ministra Administracji I Cyfryzacji z dnia 26 marca 2014 w sprawie zasobu informacyjnego przeznaczonego do udostępniania w Centralnym Repozytorium Informacji Publicznej) 746 was enacted in order to implement Article 9a(2b)(1), which introduces the obligation to make information resources public in the online central repository. The regulation defines obliged entities, the scope of the information resource, the manner of its transmission, the schedule of transferring the information resource and metadata to the central repository. For instance, the following data need to be published: data of local governments, the rating of Poland, national budget income, budget of individual ministries, in the manner and following the schedule prescribed by the Regulation, and respecting the technical specifications for each category of data, as individually mentioned in the Regulation for each information resource. Such requirements can be found in the Regulation of the Minister of Environment on the manner and frequency of updating environmental information of 23 November 2010 (Rozporządzenie

746 http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20140000491/O/D20140491.pdf.

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Ministra Środowiska w sprawie sposobu i częstotliwości aktualizacji informacji o środowisku z dnia 23 listopada 2010 r. (Dz.U. Nr 227, poz. 1485))747 as well. This Regulation implements the Act of 3 October 3 2008 on providing information on the environment and its protection, public participation in environmental protection and environmental impact assessments (Ustawa z dnia 3 października 2008 r. o udostępnianiu informacji o środowisku i jego ochronie, udziale społeczeństwa w ochronie środowiska oraz o ocenach oddziaływania na środowisko Dz.U. 2008 Nr 199 poz. 1227)748. This Regulation determines the way and form in which information is made public, the minimum extent of published data, and the frequency of updating the information (Article 1 of the Regulation) in relation to environmental data such as the programmes protecting air quality, acoustic maps, and the release and abstraction of water (Article 24 Act on environment and its protection).

(b) published and updated frequently at the highest possible level Yes, according to Article 9a(2c) Act of Access to Public Information, of granularity to ensure completeness and accuracy the entities indicated in the Regulation of the Minister of Administration and Digitisation of 26 March 2014 regarding the information resource intended for sharing in the Central Repository of Public Information, item 491 (Rozporządzenie Ministra Administracji I

747 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20102271485. 748 http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20081991227/U/D20081227Lj.pdf.

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Cyfryzacji z dnia 26 marca 2014 w sprawie zasobu informacyjnego przeznaczonego do udostępniania w Centralnym Repozytorium Informacji Publicznej) 749 are obliged to systematically verify and update the information resources and metadata provided in the central repository. Those entities are specified in Article 9a(2) Act of Access to Public Information as (1) government administration bodies, (2) special funds, (3) the Social Insurance Institution, (4) the Agricultural Social Insurance Fund, (5) the National Health Fund, (6) state legal persons established on the basis of separate acts to perform public tasks, except universities, the Polish Academy of Sciences and scientific units within the meaning of the Act of 30 April 2010 on the principles of financing science other than state research institutes. There are also data quality requirements in Annex 1 to the program of open public data, which includes the standards of publishing data on the portal danepubliczne.gov.pl. (Standard udostepniania danych na portalu danepubliczne.gov.pl). According to the quality requirements, the data published needs to be up to date, complete, formally correct, trustworthy, consistent, not redundant, provided in the original language of the data and in the machine- readable format.750

749 http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20140000491/O/D20140491.pdf. 750 https://danepubliczne.gov.pl/article/program-otwierania-danych-publicznych.

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Specific requirements can also be found in the Regulation of the Minister of Environment on the manner and frequency of updating environmental information of 23 November 2010 (Rozporządzenie Ministra Środowiska w sprawie sposobu i częstotliwości aktualizacji informacji o środowisku z dnia 23 listopada 2010 r. (Dz.U. Nr 227, poz. 1485)).751 This Regulation determines the way and form in which information is made public, the minimum extent of published data, and the frequency of updating the information (Article 1 of the Regulation).

(c) published and maintained at a stable location, preferably on Yes, at danepubliczne.gov.pl, which is the Central Repository of Public the highest organisational level within the administration, to Information maintained by the Ministry of Digital Affairs, with the ensure easy access and long-term availability recommendation to keep the URL of each resource unchanged (Annex 1 to the program of open public data).752

(d) published in machine-readable and open formats (CSV, JSON, Yes, but it is not a requirement for all published data as other (closed XML, RDF, etc.) to enhance accessibility standards) are also acceptable. The Re-use Act does not create new standards regulating the data formats in which PSI should be available, but requires the use of formats defined in an already

751 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20102271485. 752 https://danepubliczne.gov.pl/article/program-otwierania-danych-publicznych.

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existing law (National Interoperability Framework (Rozporządzenie Rady Ministrów z dnia 12 kwietnia 2012 r. w sprawie Krajowych Ram Interoperacyjności, minimalnych wymagań dla rejestrów publicznych i wymiany informacji w postaci elektronicznej oraz minimalnych wymagań dla systemów teleinformatycznych, Poz. 526, 16.05.2012753, hereinafter referred to as KRI)). Annex 2 and 3 to KRI list the data formats that are used to exchange information resources by entities performing public tasks. These are commonly used formats, although the list includes both open and closed standards. KRI prohibits discrimination against any technological solution when building information exchange systems. The agreed set of rules meets the criteria of the "open standard" and "open formats" set out in Directive 2013/37/ EU.

According to the format, communication and encryption protocols - obliged entities are bound to use data formats, communication and encryption protocols specified in the provisions issued pursuant to Art. 18.1 Re-use Act. Sharing or transfering PSI in machine-readable format with metadata is more a recommendation, than legal obligation (see P. Sitniewski, Ustawa o ponownym wykorzystywaniu informacji sektora publicznego. Komentarz, Artykuł 10, wyd. 1,

753 http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20120000526/O/D20120526.pdf.

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C.H.Beck). The authors of the manual issued by the Ministry754 indicate that in terms of formats and protocols, obligated entities building their own information systems should remember to introduce the option of exporting data to the formats easily accessible to third parties and machines. Annex 1 to the program of open public data recommends publishing in machine-readable and open formats. Annex 1 also lists the preferred data formats. For structured data, the preferred data formats are – in the order of preference: (1) JSON, XML, GML, (2) CSV, SHP, (3) XLSX, ODS, (4) XLS. For unstructured data, the preferred formats are (1) DOCX, ODT, RTF, (2) DOC, TXT2, (3) PDF, (4) JPG, TIF, PNG.

(e) described in rich metadata formats and classified according to No metadata standard is implemented, but searching and standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to interoperability is supported by rich metadata at facilitate searching and interoperability danepubliczne.gov.pl, API and connection to the European portal. Sharing and transmitting public sector information in a machine- readable format with metadata is necessary only “when possible and

754 Mariusz Maciejewski [in:], Ponowne wykorzystywanie informacji sektora publicznego, Ministerstwo Cyfryzacji, Warszawa 2016, p. 115-116, https://www.gov.pl/cyfryzacja/udostepniamy-podrecznik-ponowne-wykorzystywanie-informacji-sektora-publicznego.

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applicable”. If one of the above-mentioned conditions is not met, then it is not necessary to share or transfer the public sector information in a machine-readable format. It should be noted that the data format, the communication protocol and the PSI encrypted machine-readable format must also fall within the scope of the data formats indicated in Art. 10.1 Re-use Act. 755 Relevant information in this regard is also included in the Public Data Opening Program (Program Otwierania Danych Publicznych),756 which is in line with the European Commission Notice – Guidelines on recommended standard licenses, datasets and charging for the Re-use of documents of 24 July 2014, 2014/C 240/01.757

(f) accessible as data dumps (massive outputs of data) as well as Some data sets are available in a way that facilitates automatic through application programming inter faces (APIs) to processing, but there is no legal requirement on this. facilitate automatic processing

(g) accompanied by explanatory documents on the metadata and Not on a noticeable scale. controlled vocabularies used, to promote the interoperability

755 Ibidem, p. 114. 756 UCHWAŁA NR 107/2016 Rady Ministrow z dnia 20 września 2016 r. w sprawie ustanowienia "Programu otwierania danych publicznych”, http://mc.bip.gov.pl/programy- realizowane-w-mc/programu-otwierania-danych-publicznych.html. 757 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2014.240.01.0001.01.ENG.

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of databases

(h) subject to regular feedback from re-users (public There is a possibility to send feedback on danepubliczne.gov.pl, but consultations, comments box, blogs, automated reporting, data providers are not obliged to respond. etc.) to maintain quality over time and promote public involvement

Yes, danepubliczne.gov.pl is the Central Repository of Public Information as stipulated in the Act on Access to Public Information, and allows for accessing and re-using public information.758

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules?

758 danepubliczne.gov.pl.

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In 2011, when implementing the 2003 Directive, the Polish legislator decided to limit the general rule for charging to the ‘direct costs’, without the possibility to charge for a ‘reasonable return on investment’. When implementing the new law on the re-use of PSI, Poland has retained the pre-existing rule on the method for calculating charges (Article 17 (2) Re-Use Act). The exception (added in response to the 2013 amendment) applies only to state museums and local government museums in case of sharing or transferring PSI for re-use for commercial and non-commercial purposes (other than non-commercial research, scientific or educational purposes). According to Article 18.2. Re-use Act “the costs of collection, production, reproduction, dissemination, preservation and rights clearance shall be taken into account when determining the amount of the charge. The total amount of the charge shall not exceed the sum of these costs, together with a reasonable return on investment not exceeding five percentage points above the reference rate of the National Bank of Poland.” The Minister of Culture and National Heritage has issued a Regulation (Rozporzadzenie Ministra Kultury I dziedzictwa narodowego z 5 lipca 2016 w sprawie maksymalnych stawek opłat za ponowne wykorzystywanie informacji sektora publicznego nakładanych przez muzea państwowe i muzea samorządowe – Regulation of the Minister for Culture and National Heritage of 5 July 2016 on maximum fees charged by government and local government museums for re-use of public sector information, Journal of Laws of 2016 Item 1011) which determines the maximum rates of charges for re-use imposed by state museums and self-governing museums.759 Another exception, which was not present in the pre-existing rules concerning the re-use, in a continuous and direct manner in real time, of public sector information gathered and stored in IT systems (Article 19 Re-Use Act). In such cases, an obliged entity may impose a charge for re-use which takes into account the costs of adjusting the IT system and the technical and organisational conditions in such a way as to fulfil a request for re-use.

759 http://dziennikustaw.gov.pl/du/2016/1011/1.

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Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

This exception was not implemented in Polish law.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

This exception was not implemented in Polish law.

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

N/A.

According to Article 6.3 Re-Use Act, the right to re-use shall be limited with respect to information constituting public sector information to which access is limited under other acts. The Act on Access to Public Information sets out grounds for refusal in Article 5. According to Article 658

5(1) Act on Access to Public Information, access can be limited based on principles defined in the Regulations on the protection of classified information and on the protection of other secrets protected by law. According to Article 5(2), the right to access information is also limited in order to protect the privacy of a natural person and business secrets. According to Article 5(2a), the right to access is limited based on the rules determined in the Regulations on forced restructuring.

No new body was established in order to deal with appeals. Administrative law provisions apply in case of refusal of the relevant authority to agree to (regardless of the legal basis) the re-use of public sector information in form of an administrative decision. The provisions of the Code of Administrative Procedure (Kodeks postępowania administracyjnego, Journal of Laws of 1960 No. 30 item 168760) apply, in particular Article 107(1).761On the basis of the constitutional law and the Code of Administrative Procedure, the applicant may request a review of the administrative decision and subsequently may challenge that

760 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19600300168. 761 A similar solution existed in the previous law regulating the re-use of public sector information and also applies in the case of refusal of access to public information.

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administrative decision to the administrative court. The administrative court verifies the legality of the decision. If the court determines the merits of the complaint, it shall revoke the decision and order the re-examination of the application. The appeal to the higher level body (appeal body) is the primary means for the applicant to challenge a refusal decision or decision to set the terms of the offer (Article 25.1 Re-Use Act). The decision of the appeal body is made on the basis of substantive law provisions, and in the absence of specific provisions, the Code of Administrative Procedure applies. According to Article 17 Code of Administrative Procedure, the higher level bodies are: 1) in relation to local government bodies - the local government appeals board, unless provided otherwise by law; 2) in relation to regional governors - the relevant minister, 3) in relation to public administration bodies other than those specified in paragraphs 1 and 2 - the relevant superior body or relevant minister, and in their absence, the State bodies which supervise their actions; 4) in relation to social organisations - the relevant higher body and in its absence, the State body which supervises the actions of such organisations. There are difficulties with determining the appeal body in relation to the entities not covered by the scope of Article 17 Code of Administrative Procedure. Frequently, the jurisprudence helps to establish the competent body.762 Appeal is a legal remedy brought against the appropriate obliged entity, expressing the dissatisfaction of the party with the administrative decision together with a request to revoke or change. No appeal may be brought against a decision given at first instance by a minister or the local government appeals board. However, a dissatisfied party may ask the body to review the case again and the regulations regarding appeals against decisions shall apply in such a case (Article 127(3) Code of Administrative Procedure). Submission of an appeal results the request being considered by the appeal body (the body of higher instance). The appeal body should once

762 the judgment of the Provincial Administrative Court in Poznań of November 8, 2011, II SA / Po 656/11, http://orzeczenia.nsa.gov.pl/doc/6965B88C9D , the judgment of the Supreme Administrative Court of 25 April 2012, I OSK 248/12, http://orzeczenia.nsa.gov.pl/doc/60C64AF354, Judgment of the Provincial Administrative Court in Warsaw of 7 January 2010, II SA / Wa 1651/09, http://orzeczenia.nsa.gov.pl/doc/61297A68D3, Judgment of the Provincial Administrative Court in Lublin of December 22, 2004, II SA / Lu 780/04, http://orzeczenia.nsa.gov.pl/doc/8EFD98B8F2.

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again consider the case from the beginning. The appeal body cannot restrict the examination of the case only to the pleas raised in the appeal. Article 132 and 138 Code of Administrative Procedure determine the possible resolutions. (There are frequent problems with determining the appeal body. Among others, museums draw attention to the fact that they do not know what the instruction should be - whether to appeal to the higher authority (and what the authority should be) or the possibility of reconsidering the case to the same body. This issue is problematic and the provisions of the Re-use Act are not regulated in this regard.) Once the administrative route has been exhausted (appeal against the decision or review of the case again in the case of ministers and self- government appeal boards), the applicant has the right to apply to the court. Time limits are different than those specified in the Law on proceedings before administrative courts (Prawo o postepowaniu przed sadami administracyjnymi, Journal of Laws of 2002, No 153, item 1270, as amended).763 According to Article 25, paragraph 2 Re-Use Act, files shall be submitted and the response to a complaint shall be given within 15 days from the date of receipt of the complaint, and a complaint shall be considered within 30 days from the date of receipt of files, along with the response to the complaint. Applicants dissatisfied with an administrative decision issued by appeal body can file a complaint regarding the decision within 30 days of the date of receipt to the provincial administrative court through the authority that issued the contested decision. The relevant authority shall then send the complaint to the provincial administrative court together with the case files within 15 days of receipt of the complaint. Preparation of the answer is the responsibility of the body (decision of the Administrative Court in Warsaw of 17 May 2010, II SO / Wa 25/10).764 There is a possibility to impose a fine (on the applicant's request) on the obliged entity in case of a breach of the time limit for filing the

763 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20021531270. 764 http://orzeczenia.nsa.gov.pl/doc/D0593AC1F9, last accessed 07/12/2017.

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complaint (Order of NSA of 12 February 2014, I OZ 72/14).765 The Administrative Court has 30 days to consider the complaint. According to Article 145(1) Code of Administrative Procedure, when taking the complaint into account, the district court may revoke the decision in whole or in part, declare it invalid in whole or in part, or declare the decision does not conform to the law. The decision on the complaint is rendered in the form of a judgment.

The transparency obligations are included in Art. 11 Re-Use Act. These obligations define both the extent of information to be provided and the manner in which they should be made available. For example, according to the Re-Use Act, it is important to publish information for re-use in a tab called “re-use” on the Public Information Bulletin or in the central repository. According to Article 11 (2) Re-Use Act, an obliged entity shall make available on the Public Information Bulletin on its website, in the section ‘re-use’, information about the charges for re-use, including the calculation basis for these charges, if they have been determined by that obliged entity, and information about factors which will be taken into account. Art. 11(4) introduces specific legal consequences if the information on conditions for re-use of public sector information made available on the Public Information Bulletin or the central repository is not provided. In such cases, “it shall be deemed that public sector information has been made available for re-use without conditions.” It should be noted that such a presumption does not refer to making available information, e.g.

765 http://orzeczenia.nsa.gov.pl/doc/BBA9B16599, last accessed 07/12/2017.

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on the entity’s website, and that, in such a situation, lack of information about the conditions requires submitting a request for determining these conditions. Transparency obligations related to charges and methods of calculation are determined by Article 20 Re-Use Act, which introduces the right to verify how a charge has been calculated for the request for re-use submitted by the applicant.

There are national rules which oblige various entities that are not "public sector bodies" to share data with public bodies. However, it is difficult to list all such cases. There are, for instance, obligations to report data on business activity conducted and their results based on Art. 30(1)(3) of the Act of 29 June 1995 on Public Statistics (hereinafter: Public Statistics Act) (Ustawa z dnia 29 czerwca 1995 o statystyce publicznej, Journal of Laws of 1995, No 88, item. 439, with later amendments).766 The reporting obligations on the Statistical Office concern all entities of the national economy, i.e. legal persons, organisational units without legal personality and natural persons conducting business

766 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu19950880439.

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activity. The official statistics services have the mandate to obtain data with "societal value", which concern e.g. education, households and families or health issues (listed in Article 35b (1) and (2) Public Statistics Act). According to Article 35b (3) Public Statistics Act, those data may be obtained directly from the natural person concerned or from information systems of public administration and official registers.

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

Yes, there is lack of clarity in this area. Article 3 (1) Re-Use Act (which defines entities obliged to provide PSI available for re-use) is directly connected to Article 9 of the Public Finance Act of 27 August 2009 (Ustawa o finansach publicznych, Journal of Laws of 2009, No 157, item 1240, as amended, hereinafter: Public Finance Act).767 The list of public finance sector entities is not exhaustive. This allows for far reaching interpretation divergences due to the affiliation (or lack of affiliation) of certain institutions to the public finance sector. For example, state-owned enterprises, research institutes, banks and commercial companies are not included in the public finance sector (Article 9(14) Public Finance Act). For this reason, they are not in principle obliged to apply the rules on the re-use of public sector information. However, there is a theoretical possibility of qualifying them to the bodies referred to in Article 3(3) of the Re-Use Act, if they meet the conditions set out in that provision (see, P. Sitniewski, Ustawa o ponownym wykorzystywaniu informacji sektora publicznego. Komentarz, wyd. 1, C.H.Beck, s. 43-72).

767 http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20091571240.

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Not discovered whilst conducting this research.

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The Netherlands Country: Netherlands Authors: Marc de Vries, Esther Tenge Date: 20 December 2017

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (e.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

Because of the connection the Dutch government saw between the provision of access to government information on the one hand and the re-use of public sector information on the other, the provisions of the 2003 PSI Directive were initially included in the Dutch Act on Public Access to Government Information (Wet openbaarheid van bestuur (Wob)).768 It was decided to implement the 2003 Directive this way also because it was considered that from the point of view of the party seeking to use this information it would be confusing if there were different procedures and possibly also different waiting periods for access and re-use. The procedure established with regard to the re-use of public sector information was therefore linked to the procedure which applied to a Wob-request for government information.769

768 Act on Public Access to Government Information (http://wetten.overheid.nl/BWBR0005252/2016-10-01). 769 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information (https://zoek.officielebekendmakingen.nl/kst-34123-3.html).

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However, in 2015, the Act on re-use of public sector information (Wet hergebruik van overheidsinformatie) was adopted.770 This Act incorporated both the rules from the 2003 PSI Directive (which had been incorporated in the Wob) and its 2013 modifications. The decision to adopt this act was based on the recognition that apart from the similarities between making government information public and allowing for re-using such public sector information, there are also differences. After all, the Wob is based on the importance of providing active and passive government information in order to promote democratic processes and ensure the legitimacy of government actions, whereas the re- use of public sector information is encouraged because of its potential to contribute to economic growth and job creation. The regulation concerning the re-use of public sector information is of an economic or competition law nature and therefore based on completely different principles than the classic Wob provisions on government information.771 These discrepancies were flagged up by the Dutch Council of State (which advises on any formal legislation drafted), which suggested it would be more straightforward to create a separate Act for the re-use of public sector information.772 This idea was supported by the Cabinet, which came to believe that the differences between the two fields were such that a separate law was desirable. In setting out its position, it points to the fact that the PSI Directive provides the legal framework for all information that is publicly available. It thus not only concerns government information, but also documents available on the basis of the Public Records Act (Archiefwet)773 or based on regulations on public registers or on large information producers, such as the Royal Netherlands Meteorological Institute or Statistics Netherlands. According to the Cabinet, although the Wob is not – or only partially – applicable in these cases, it is this kind of information that is of interest to the private sector.774

770 Act on re-use of public sector information (http://wetten.overheid.nl/BWBR0036795/2016-10-01). 771 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 772 Opinion of the Advisory Division of the Council of State of 6 November 2014 on the introduction of Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector (WO04.14.0323 / I). 773 Public Records Act (http://wetten.overheid.nl/BWBR0007376/2015-07-18). 774 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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Accordingly, in 2015, the new Act on re-use of public sector information was adopted to apply specifically to the re-use of public sector information. The Act entered into force on 18 July 2015.775 The new provisions on charging – in particular the one the marginal costs principle – obviously sparked a debate and subsequent lobby from the large key register holders like Cadastre, Land Registry and Mapping Agency (Kadaster), the Road Traffic Authority (RDW) and the Chamber of Commerce as they largely rely on incomes from charging for reuse. Their lobby was successful in the sense that they managed to include provisions in their sectoral legal frameworks exempting them from the maximum price level set in the Directive (which the Directive leaves room for). Additionally, in the context of the new regime created for public cultural heritage information, several provisions of the 1995 Public Records Act were also amended.776

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

The Ministry of the Interior and Kingdom Relations is responsible for the implementation of the PSI Directive and its modifications in the Netherlands. This is of course one of the key challenges taking the re-use dossier (and open data agenda) forward: this ministry has a coordinating role but has no real power – data and/or financial means – to create or exercise pressure towards other ministries or municipalities. This also ties in with the Dutch political system: a decentralised conglomerate of public bodies that seek to solve issues through compromises rather than pushing things through. This being said, under the new government established in November 2017 (Rutte III), some dataholders (in particular in the field of spatial data) have been moved to the Ministry of the Interior, possibly allowing for more synergy between policy making and actual implementation

775 Manual by the Ministry of the Interior and Kingdom Relations on the Act on re-use of public sector information, p. 6 (https://open-overheid.nl/wp- content/uploads/2016/05/WEB_90943_BZK_Handleiding-Who-versie2.pdf). 776 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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and execution.

The INSPIRE Directive has been transposed in the Netherlands through the Implementation Act EC Directive on Spatial Information Infrastructure of 2 July 2009 (Act on Spatial Information Infrastructure).777 This Act applies to collections of spatial data that: 1) Relate to a part of the Dutch territory or of the Dutch Exclusive Economic Zone; 2) Are in electronic format; 3) Are held by or on behalf of an administrative authority in the sense that the relevant set of spatial data is produced, received, managed or updated by that administrative body and falls within the scope of its public task, or are held by or on behalf of a third party to whom the network has been made available; 4) Are related to one or more designated thematic categories.778 The connections are:

777 Act on Spatial Information Infrastructure (http://wetten.overheid.nl/BWBR0026158/2009-09-01). 778 Act on Spatial Information Infrastructure, Article 2.

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1. The Act on re-use of public sector information would apply to most of the spatial data to which this Act applies, as it concerns the use of information contained in documents held by a body entrusted with a public task for purposes other than the initial purpose within the public task for which the information was produced, not including information exchanged between such bodies solely in the performance of their public tasks.779 2. Moreover, the Act on Spatial Information Infrastructure applies to collections of spatial data stored by or on behalf of an administrative authority in respect of which a third party holds intellectual property rights, only insofar as that third party has given its consent.780 Similarly, the Act on re-use of public sector information does not apply to information to which the rights are held by a third party within the meaning of the Copyright Act, the Related Rights Act or the Databases Act.781 3. Also, Article 12(1) and 12(2) of the Act on Spatial Information Infrastructure prescribe that the data concerned must be made available to the public free of charge, although in certain cases an exception to this can be made (e.g. if it is necessary to charge fees in order to ensure that the relevant spatial data sets and services with regard to spatial data are preserved). This can be considered to be in line with the provisions of the Act on re-use of public sector information on charging. It follows that both Acts can be considered to complement each other. By requiring that all spatial information for all designated themes must be published through the INSPIRE portal, the Act on Spatial Information Infrastructure ensures this information is made publicly accessible and can potentially fall under the Act on re-use of public sector information. Moreover, through the Act’s requirements that the metadata for the spatial data must be provided, the harmonisation of spatial data sets and services is adopted, and access via search, consultation and download services is given, it provides an important contribution to the re-usability of this information. Nonetheless, the main objective of the INSPIRE Directive is to harmonise the accessibility of geo-spatial data in view of creating and executing environmental policies (across Europe), with a particular focus on sharing this information between public bodies (rather than the general public - the “re-users”). As the large majority of the data under this Directive are environmental data (and thus public data), it has a significant

779 Act on re-use of public sector information, Article 1(b). 780 Act on Spatial Information Infrastructure, Article 4. 781 Act on re-use of public sector information, Article 2(1)(b).

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impact on the re-use potential. The INSPIRE Directive thus serves as an accelerator for the re-use of environmental public geo-spatial data (although not for other domains of public sector information) and as such it could serve as a front runner for other sectors.

No such issues were identified when carrying out of this research.

There are no national rules in place in the Netherlands that limit the exercise of copyright protection in order to preserve competition. With regard to limitations to the exercise of copyright protection in order to ensure public access to information, a distinction must be made between situations in which a public sector body may have copyrights in public sector information and situations in which a third party (not being a public sector body) may have copyrights in public sector information. Copyrights held by public sector bodies

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Under the Dutch Copyright Act, no copyright subsists in laws, decrees or regulations issued by public authorities, or in judicial or administrative decisions, which means this information is publicly accessible.782 Moreover, the further making public or reproduction of a literary, scientific or artistic work made public by or on behalf of the public authorities is not regarded as an infringement of the copyright in such a work, unless the copyright has been explicitly reserved, either in a general manner by law, decree or ordinance, or in a specific case by a notice on the work itself or given when the work was made public.783 Copyrights held by third parties The rules on the re-use of public sector information do not apply to situations in which a third party (not being a public sector body) has copyrights in public sector information.784 The public sector body will – in such cases - still have the right to provide access to this information, but this must be based on a contractual relationship between the copyright holder and the public sector body. The difference between the obligation to make information public (under the Wob) and to make it available for re-use (under the Act on re-use of public sector information) must be distinguished. As the Wob does not specifically disallow access to public sector information in which copy rights are held by third parties, such access will have to be provided in case the general interest in public availability is considered to be more important than the copy right of the third party. Thereby, a situation may occur in which such information may be public but not re-useable.

Q6. Are there any national rules (or case law) limiting the exercise of database rights in order to ensure public access to information (held

782 Copyright Act, Article 11 (http://wetten.overheid.nl/BWBR0001886/2017-09-01). 783 Copyright Act, Article 15(b). 784 Act on re-use of public sector information, Article 2(1)(b).

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by the public or by the private sector), or in order to preserve competition etc? Please describe (if so).

There are no national rules in place in the Netherlands that limit the exercise of database rights in order to preserve competition. With regard to limitations to the exercise of database rights in order to ensure public access to information, a distinction must be made between situations in which a public sector body may have database rights with respect to public sector information and situations in which a third party (not being a public sector body) may have database rights with respect to public sector information held by a public sector body. Database rights held by public sector bodies The Dutch Databases Act (Databankenwet) excludes public authorities from relying on database rights with respect to databases of which it is the producer and for which the contents are formed by laws, orders and resolutions promulgated by it, legal decisions and administrative decisions. Moreover, these rights shall not apply to databases for which the public authority is the producer, unless the right is expressly reserved either in general by law, order or resolution or in a particular case as evidenced by a notification in the database itself or when the database is made available to the public.785 In practice, these authorities often reserve database rights.786 Whether a government can claim database rights was also considered in the Landmark case. In 2009, the Administrative Law Division of the Council of State released its opinion on the dispute between Landmark (a private company) and the municipality of Amsterdam. The dispute regarded a request from Landmark to the municipality for the re-use of a list of addresses in the municipality of Amsterdam in the context of the Wob.787 The Council of State ruled that although the database in this act was seen as worthy of protection, the municipality could not be

785 Databases Act, Article 8 (http://wetten.overheid.nl/BWBR0010591/2017-09-01). 786 Letter of 30 May 2011 to the President of the House of Representatives from the Minister of the Interior and Kingdom Relations on re-use and open data (https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/viq8j0hov4yp). 787 Administrative Law Division of the Council of State, 29 April 2009 (LJN BI2651).

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regarded as the rightful claimant to database rights because it was not its producer within the meaning of the Databases Act. In order to qualify as a producer, the risk of the investment for creating the database must have been bore.788 Since the address list was established to facilitate the public task assigned to the municipality, and a substantial part of the invested funds were covered by a subsidy from the Ministry of Housing, Spatial Planning and the Environment, the municipality could not be considered to have made a substantial investment in the database and thus could not be regarded as its producer. The Department therefore concluded that the municipality wrongly reserved database rights on the address list. The verdict raised the question of to what extent government bodies can be considered to bear risks in carrying out public tasks and therefore whether governments can claim data rights for data they process in the context of their public tasks.789 Database rights held by third parties The rules on the re-use of public sector information do not apply to situations in which a third party (not being a public sector body) has database rights in public sector information.790 The public sector body will – in such cases - still have the right to provide access to such (information contained in) databases, but this must be based on a contractual relationship between the holder of the database rights and the public sector body. The difference between the obligation to make information public (under the Wob) and to make it available for re-use (under the Act on re-use of public sector information) must be distinguished. As the Wob does not specifically disallow access to public sector information to which database rights are held by third parties, such access will have to be provided in case the general interest in public availability is considered to be more important than the database right of the third party. Thereby, a situation may occur in which such (information contained in) databases may be public but not re-useable.

788 Databases Act, Article 1(1)(b). 789 Dr B. van Loenen, Ir. F.M. Welle Donker, Mr. S. Kulk, Dr. Ir. D.A. Groetelaers, Prof. J. de Jong, Prof. H.D. Ploeger, Databeleid Rijkswaterstaat Deel: Hoofdwatersysteem, p. 11 (https://repository.tudelft.nl/islandora/object/uuid%3A540a04e6-d4ee-4d78-a526-7d6a8300009b). 790 Act on re-use of public sector information, Article 2(1)(b).

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No such rules were identified when carrying out of this research.

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The Act on re-use of public sector information does not apply to information relating to personal data held by public sector bodies. Additionally, at present, the Dutch Personal Data Protection Act (Wet bescherming persoonsgegevens) – which incorporates the 1995 Privacy Directive – contains the main rules for handling personal data.791 With regard to public sector information, the Wob rules that the disclosure of information shall not take place insofar as it related to “special personal data” (unless the provision of such data does not violate personal privacy).792 Such special personal data includes personal data concerning a person's religion or belief, race, political opinion, health, sexual life, as well as personal data concerning the membership of a trade union. Additionally, criminal law personal data and personal data about unlawful behaviour or harassment are classified as being special personal data.793 As these government documents cannot be made public, they will thus also not be made available for re-use. However, this restriction does not apply to public registers, which are public and contain personal data. These include, for example, the business register held by the Chamber of Commerce, the custodial care register, the matrimonial register and the land register held by the Dutch Cadastre. The data contained in these can be requested by everyone, but the complete registers cannot be made available for re-use since that would be incompatible with the purpose for which the personal data were collected in these registers. Additionally, although these personal data are public, they cannot be made available as searchable files to everyone. The insolvency register, for example, can be consulted online for individual cases but cannot be browsed. If these files were offered for re-use, this would lead to personal data being processed without the protection of privacy being taken into account. The parts of these documents which do not contain personal data can be made available for re-use. However, it cannot be ruled out that the re-user will link this data to other data, so that personal data may become available. It is the responsibility of the manager of the documents to make this assessment.794 This legal framework may change under the General Data Protection Regulation, as it holds specific provisions on access to and re-use of public

791 Personal Data Protection Act (http://wetten.overheid.nl/BWBR0011468/2017-07-01#). 792 Act on Public Access to Government Information, Article 10(1)(d). 793 Personal Data Protection Act, part 2, paragraph 2. 794 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information; Manual by the Ministry of the Interior and Kingdom Relations on the Act on re-use of public sector information (http://open-overheid.nl/wp-content/uploads/2016/05/WEB_90943_BZK_Handleiding-Who-versie2.pdf).

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registers. As Member States have been left room for national interpretation under the Regulation, it remained to be seen how the Dutch legislator will ‘fill up’ these gaps.

Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

In 2009, the Dutch DPA released guidelines on the publishing of personal data online.795 Specifically, these guidelines provide guidance to situations in which an administrative authority decides to publish government information containing personal data, and Personal Data Protection Act standard must be complied with. These guidelines thus focus on the providing of government information, rather than on the re-use of public sector information. However, as they speak to which government information is release on account of the Wob, they will also affect which public sector information is publicly available for re-use. The Ministry of the Interior and Kingdom Relations also published a comprehensive manual on the Act on re-use of public sector information.796 Obviously, also the opinion of the Article 29 Working Group has been taken into consideration in the Netherlands.797

795 Guidance by the Dutch DPA on active disclosure and respect for privacy (https://autoriteitpersoonsgegevens.nl/nl/nieuws/openbaarmaking-overheidsinformatie-en- bescherming-persoonsgegevens-cbp-overhandigt-nieuwe). 796 Manual by the Ministry of the Interior and Kingdom Relations on the Act on re-use of public sector information (https://www.open-overheid.nl/open- overheid/handleiding-wet-hergebruik-van-overheidsinformatie-een-nieuwe-versie/). 797 http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2013/wp207_en.pdf.

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The need to ensure that only PSI that contains no The DPA guidelines point out that based on the Dutch Personal Data Protection Act, personal data is made available for re-use this processing is unlawful, unless this is permitted by the said Act. In providing government information, it must thus be reviewed whether a right under the Wob or a right under the Personal Data Protection Act outweighs the other. According to the guidelines, this review must lead to the infringement of a right to meet the necessity criterion laid down in Article 8 of the European Convention on Human Rights. It also states the case law shows that a number of weighting factors may be important in this assessment. The first question is whether it concerns strictly personal data. Next, the question arises as to whether further disclosure of personal data can be traced, so that the person concerned can be identified. If that is the case, the importance of openness will often not outweigh the importance of respect for personal privacy.798 They note that the case law shows that the importance of public access to these data mostly loses out to the importance of respect for privacy.799 The manual by the Ministry of the Interior also recognises that bodies entrusted with a public task are bound by the Personal Data Protection Act. As the party responsible for data that falls under this act, these institutions have a duty of care. This means, among other things, that these institutions may not release data that contains personal data. The manual states that the releasing of data for re-use requires a lot of care and that it cannot be ruled out that the re-user freely links the data to other data, so that personal data may become available. According to the manual, it is therefore useful to

798 Guidance by the Dutch DPA on active disclosure and respect for privacy, p. 10. 799 Guidance by the Dutch DPA on active disclosure and respect for privacy, p. 15.

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inform the re-user about the possible risks that his actions could lead to an infringement of the protection of personal data.800 The obligation to anonymise or pseudonymise PSI The DPA guidelines state that if an administrative body decides to publish personal containing personal data before making it available data on the internet, then it is important that it reasonably uses all existing for re-use (possibly including methodologies or possibilities to restrict the privacy violation of data subjects, for example by procedures for pseudonymisation or anonymization) anonymising their personal data. This means that the administrative body must make this data (e.g. names and addresses) unreadable.801 If the anonymisation of data does not sufficiently protect the privacy of the data subject (e.g. because it is already known to whom the data relate), the deletion of parts of documents may be may be an option. This way, disclosure is limited to sections of government information.802 The obligation to conduct a data protection impact The DPA guidelines point out that when releasing government information online, an assessment or a similar risk assessment before assessment must be made between rights under the Wob and rights under the making PSI containing personal data available for re- Personal Data Protection Act (see above). use The obligation to include data protection provisions No such guidelines were identified when carrying out of this research / the identified in licenses for re-use of PSI containing personal data guidelines did not address this issue. (e.g. including restrictions on the purposes of use of the PSI to ensure compatibility with the original purposes)

800 Manual by the Ministry of the Interior and Kingdom Relations on the Act on re-use of public sector information (https://www.open-overheid.nl/open- overheid/handleiding-wet-hergebruik-van-overheidsinformatie-een-nieuwe-versie/). 801 Guidance by the Dutch DPA on active disclosure and respect for privacy, p. 15. 802 Guidance by the Dutch DPA on active disclosure and respect for privacy, p. 16

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Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis?

The Act on re-use of public sector information does not apply to information not publicly accessible and that applies to information that is public pursuant to (mostly) the Wob, or other regulations.803 Under the Wob, disclosure of information pursuant may not take place in certain situations – set out in Article 10 and 11 of the Act. Under these Articles, disclosure will not take place if it will, for example, endanger the unity of the Crown, the security of the State, its importance does not outweigh relations between the Netherlands and other states or international organisations, respect for personal privacy, or when an application concerns information contained in documents drawn up for the purpose of internal consultation (in which case no information shall be disclosed concerning personal opinions on policy contained therein). Article 14 of the Public Records Act authorises everyone to consult and use archives. According to Article 17(2), the keeper of an archive may only refuse an application to use or consult its records if, in his or her opinion, the condition of the records does not permit such access or the records cannot safely be entrusted to the applicant. If the nature or extent of the use or consultation of records poses a serious threat to their condition, the keeper is empowered to decide that, instead of the said records, reproductions shall be made available.804

Documents for which citizens or companies need to prove a particular Such documents are not specifically excluded. The Act on re-use of interest to obtain access public sector information states that applicants do not need to declare their interest in a request for re-use.805

803 Act on re-use of public sector information, Article 2(1)(a); Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 804 Public Records Act, Article 17(4). 805 Act on re-use of public sector information, Article 3(3).

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Documents relating to national security, statistical confidentiality or Such documents are not specifically excluded. commercial confidentiality Documents the supply of which is an activity falling outside the public The Act on re-use of public sector information defines a document as task “a written record or other material containing data held by a body entrusted with a public task”.806 This definition does not specifically exclude documents the supply of which is an activity falling outside the public task, merely those held by a body not entrusted with a public task. Documents containing personal data Although national rules on re-use do not exclude all documents containing personal data, the Act on re-use of public sector information containing these rules does not apply to information relating to public personal data, re-use of which is incompatible with the purposes for which the data were collected.807 Documents held by educational and research establishments (other The Act on re-use of public sector information does not apply to than university libraries) and documents held by cultural information held by educational and research establishments and establishments other than libraries, museums and archives information held by cultural establishments other than libraries and museums.808 Documents held by public service broadcasters and their subsidiaries The Act on re-use of public sector information does not apply to information held by a public service broadcaster, another body

806 Act on re-use of public sector information, Article 1(c). 807 Act on re-use of public sector information, Article 2(1)(g). 808 Act on re-use of public sector information, Article 2(1)(d)(e).

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entrusted with a public service broadcasting task or a body operating under the responsibility of a public broadcaster or another body entrusted with such a task.809 Documents for which 3rd parties hold intellectual property rights The Act on re-use of public sector information does not apply to information to which the rights are held by a third party within the meaning of the Copyright Act, the Related Rights Act or the Databases Act.810

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

Article 3 of the PSI Directive is transposed into national law by Article 3(5) and 3(6) of the Act on re-use of public sector information. These Articles state that a body entrusted with a public task may refuse re-use requests only for information to which the Act does not apply and that a museum or library may do so for information to which it holds the rights within the meaning of the Copyright Act, the Related Rights Act or the Databases Act as well. As the Act on re-use of public sector information does not apply to information not publicly accessible, re-use requests may thus be denied when they concern this type of information.811 The Act does not go further in linking the right of re-use to the right of access. However, its Explanatory Memorandum explains the reasoning behind the separation of the rules on the accessibility of

809 Act on re-use of public sector information, Article 2(1)(c). 810 Act on re-use of public sector information, Article 2(1)(b). 811 Act on re-use of public sector information, Article 2(1)(a).

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government information and the re-use of public sector information (see question 1) and that the Act only applies to information that is public pursuant to (mostly) the Wob or other regulations.812

The Act on re-use of public sector information states that a museum or library may refuse a request for re-use of information to which it holds the rights within the meaning of the Copyright Act, the Related Rights Act or the Databases Act.813 By specifically referring to these Acts, it establishes the legal framework setting out in which circumstances the re-use of documents to which these bodies hold intellectual property

812 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 813 Act on re-use of public sector information, Article 3(6).

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rights. Under the Dutch Copyright Act, a copyright is obtained by producing a work or material. No formalities (e.g. a copyright registration) are required for it to come into existence. A copyright lasts for 70 years after the death of the author.814 As mentioned above, in cases where a copyright is held (e.g. on postcards or other information material about the collections of these institutions) by a museum or library, they may deny a request for re-use. However, under the Dutch Copyright Act, no copyright subsists in laws, decrees or regulations issued by public authorities, or in judicial or administrative decisions.815 If such documents containing such information are held by a museum or library, they are thus public and re-usable. Moreover, the further making public or reproduction of a literary, scientific or artistic work made public by or on behalf of the public authorities is not regarded as an infringement of the copyright in such a work, unless the copyright has been explicitly reserved, either in a general manner by law, decree or ordinance, or in a specific case by a notice on the work itself or given when the work was made public.816 The Related Rights Act (Wet op de naburige rechten) provides rights to protect the efforts and performance of performers, music producers, film producers and broadcasting organisations.817 As with the Copyright Act, no formalities are required to obtain these rights. Most “related rights” expire after 50 years. Under the Act on re-use of public sector information, a museum or library may refuse a re-use request for information to which they hold “related rights”. However, the Act specifies that these rights do not apply to performances by “public powers” unless they are expressly reserved.818

814 Copyright Act, Article 37. 815 Copyright Act, Article 11. 816 Copyright Act, Article 15(b). 817 Related Rights Act (http://wetten.overheid.nl/BWBR0005921/2017-09-01). 818 Related Rights Act, Article 9(c).

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The Dutch Databases Act protects collections of arranged data (e.g. of official government announcements or statistical data on the website of Statistics Netherlands) which require a substantial investment to be made.819 A producer of a database has the exclusive right to authorise the retrieval or re-use of the whole of or a substantial part of the content of the database, as well as the repetitive and systematic retrieval or re- use of parts of the content of a database insofar as this is contrary to the normal exploitation of that database or causes unjustified damage to the legitimate interests of the producer of the database.820 A producer holds this right for 15 years.821 However, a producer of a database which has been made available in any way to the public may not prevent a legitimate user of that database from requesting or re-using non- substantial parts of the content.822 Moreover, the Act excludes public authorities from holding database rights with respect to databases of which it is the producer and for which the contents are formed by laws, orders and resolutions promulgated by it, legal decisions and administrative decisions.823 Lastly, these rights shall not apply to databases for which the public authority is the producer, unless the right is expressly reserved either in general by law, order or resolution or in a particular case as evidenced by a notification in the database itself or when the database is made available to the public.824 From these Acts, if follows that the re-use of most public sector information held by libraries and museums is allowed, unless these bodies explicitly limit its re-use by claiming intellectual property rights to it. The Act on re-use of public sector information does not allow for an intellectual property grounds for refusal of re-use requests concerning archives. Allowing this would be contrary to Article 14 of the Public Records Act, as it authorises everyone to consult and use archives. The

819 Databases Act, Article 1(1)(a). 820 Databases Act, Article 2(1). 821 Databases Act, Article 6(1). 822 Databases Act, Article 3(1). 823 Databases Act, Article 8(1). 824 Databases Act, Article 8(2).

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keeper of an archive may only refuse an application for use or consultation of the archive’s records if, in his or her opinion, the condition of the records does not permit such access or the records cannot safely be entrusted to the applicant.825 If the nature or extent of the use or consultation of records poses a serious threat to their condition, the keeper may decide that, instead of the said records, reproductions shall be made available.826

The Explanatory Memorandum of the Act on re-use of public sector information notes that the PSI Directive does not expand on the concept of “reasonable rate of return” and that it is not possible to provide a fixed percentage that would apply to all the bodies that fall under Directive. However, it does state that it can be generally noted that a “reasonable rate of return” is related to a percentage which is added to the costs that bodies entrusted with a public task may charge. With this amount, the investments it made must be recovered, taking into account the profit made. The Memorandum goes on to mention that for commercial players on a comparable market, the percentage of profit would take into account the degree of business risk.827

825 Public Records Act, Article 17(2). 826 Public Records Act, Article 17(4). 827 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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With regard to cultural heritage institutions, the Explanatory Memorandum notes that as far as libraries and museums are concerned,828 when calculating a “reasonable rate of return” on investment, the amount charged by the private sector for the re-use of identical or similar documents can be taken into account. However, no further guidance on how the concept should be applied by these institutions is provided. Archives cannot charge for (allowing) re-use. Under Article 2b and 14 of the Public Records Act, all persons shall be entitled to consult these records free of charge and to make or have made, at their own expense, images, copies, extracts or versions of all or part of the records concerned.

828 As can be seen above, the Act does not apply to Archives.

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The Act on re-use of public sector information provides that where an exclusive right is granted for the digitisation of collections of public sector information held by museums or libraries, the period of exclusivity shall generally not exceed ten years. If the period does exceed ten years, the body which granted the exclusive right shall examine in the 11th year, and where appropriate every seven years thereafter, whether the basis on which the exclusive right was granted still applies.829 Moreover, it rules that the substantive content of all exclusive rights granted shall be published in a government journal or other appropriate forum.830 However, no national register or arrangements, nor clarity regarding what “reviewing” actually entails, were identified when carrying out of this research. Archives have been exempted from this possibility to enter into exclusive arrangements. This is in line with Articles 2b and 14 of the Public Records Act, under which records kept in a repository shall be open to the public as well as available for re-use.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) No clarity in respect to this term is provided. It can be noted that only the “where possible” condition has been implemented into national law.831 “disproportionate effort” (Art 5(2)) With regard to this term, it is mentioned that a request that requires the digitisation of large numbers of pages or documents whose state does not allow digitisation (e.g. old manuscripts) can be rejected on

829 Act on re-use of public sector information, Article 7(3). 830 Act on re-use of public sector information, Article 7(5). 831 Act on re-use of public sector information, Article 5(1).

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the grounds that this would constitute “disproportionate effort”, provided it is substantiated.832

Q17. Dynamic data / APIs Are there any requirements on public bodies or bodies governed by public law (or some of these bodies) to do the following, in respect of public sector information (or some of this information)? Under the Wob, an administrative authority shall provide, of its own accord, information on its policy and the preparation and implementation thereof, whenever the provision of such information is in the interests of effective, democratic governance.833 In doing so, it shall ensure that the information is supplied in a comprehensible form and in such a way as to reach the interested party and as many interested members of the public as possible at a time which will allow them to make their views known to the administrative authority in good time.834 Moreover, an administrative authority must ensure that the policy recommendations which the authority receives from independent advisory committees, together with the requests for advice and proposals made to the advisory committees by the authority, shall be made public where necessary, possibly with explanatory notes. This must happen no more than four weeks after they have been received by the administrative authority.835 Their publication shall be announced in the Netherlands Government Gazette or in some other periodical made generally available by the government.836 In practice, data from government organisations is proactively made available as open data if no exception or limitation grounds of the Wob or special disclosure regulations apply.

832 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 833 Act on Public Access to Government Information, Article 8(1). 834 Act on Public Access to Government Information, Article 8(2). 835 Act on Public Access to Government Information, Article 9(1). 836 Act on Public Access to Government Information, Article 9(2).

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A lot of public sector information is accessible via government websites.837 In addition, a beta version of the Dutch open data portal has been opened.838 This portal offers an up-to-date overview of all available datasets of the Dutch government and refers to the location and / or to the organisations and contacts behind a dataset. The function is completed by the data register and the synchronisation functions with data sources from government organisations. The portal specifies that when making open data available, consideration must be given to whether the re-use of data could pose risks for fundamental values and privacy.839 Open data (as well as government information published elsewhere) is released with a CC-Zero declaration. 840 In case the indication of the source of the data is of importance to a government organisation, open data can be released with a CC-By declaration.841 In April 2016, the Open Government Act (Wet open overheid (Woo)) was adopted by the Dutch House of Representatives.842 Should the proposed Act be passed by the Senate as well, it will replace the Wob. The Act aims to increase the active disclosure of documents by governments, and would impose more stringent rules on this than are in place under the Wob. To this end, it includes a list of categories on which information would have to be made public in principle. In addition, the Act would introduce a transparency register in which administrative bodies would be obliged to keep a public register of all the documents they hold.

(i) published online in their original, unmodified form to ensure There is no legal requirement on this. However, Dutch open data timely release portal states that open data posted is as similar as possible to the data

837 For example, wetten.nl, Overheid.nl and statengeneraaldigitaal.nl. 838 https://data.overheid.nl. 839 https://data.overheid.nl/over-open-data-0. 840 Letter of 30 May 2011 to the President of the House of Representatives from the Minister of the Interior and Kingdom Relations on re-use and open data (https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/viq8j0hov4yp). 841 https://data.overheid.nl/over-open-data-0. 842 Proposal Open Government Act (https://www.eerstekamer.nl/wetsvoorstel/33328_initiatiefvoorstel_voortman).

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used within the public organisation and is made available as much as possible “as is”.843

(j) published and updated frequently at the highest possible level Administrative authorities must ensure that government information of granularity to ensure completeness and accuracy is supplied in a comprehensible form and in such a way as to reach the interested party and as many interested members of the public as possible at a time which will allow them to make their views known to the administrative authority in good time.844

(k) published and maintained at a stable location, preferably on No. the highest organisational level within the administration, to ensure easy access and long-term availability

(l) published in machine-readable and open formats (CSV, JSON, There is no legal requirement on this. However, open data is offered XML, RDF, etc.) to enhance accessibility via the portal in a way that allows further processing and is preferably made available in an open standard.845 (m) described in rich metadata formats and classified according to There is no requirement. However, open data is offered via the portal standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to is equipped with metadata according to the DCAT-AP standard. 846 facilitate searching and interoperability

(n) accessible as data dumps (massive outputs of data) as well as No. through application programming inter faces (APIs) to facilitate automatic processing

843 https://data.overheid.nl/over-open-data-0. 844 Act on Public Access to Government Information, Article 2(2). 845 https://data.overheid.nl/over-open-data-0. 846 https://data.overheid.nl/over-open-data-0.

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(o) accompanied by explanatory documents on the metadata and There is no specific legal requirement on this. However, controlled vocabularies used, to promote the interoperability administrative authorities must ensure that government information of databases is supplied in a comprehensible form.847

(p) subject to regular feedback from re-users (public There is no legal requirement on this. However, users of the portal are consultations, comments box, blogs, automated reporting, asked to always report problems with datasets. This can be done via etc.) to maintain quality over time and promote public the 'feedback' button at the bottom of each data set.848 involvement Moreover, the quality of links on the portal is measured through a link checker, and the number of working links must always be above 95%. Data owners are asked to adjust datasets with non-working links. If this is not done within a certain timeframe, the dataset will be removed from the portal.849

Q18. Practical arrangements (Art 9) Article 9 of the Directive obliges Member States to certain practical arrangements. Have such arrangements been made in practice (beyond mere transposition of Article 9 into law)? As can be seen above, the Dutch open data portal offers an up-to-date overview of all available datasets of the Dutch government and refers to the location and / or to the organisations and contacts behind a dataset. The function is completed by the data register and the

847 Act on Public Access to Government Information, Article 2(2). 848 https://data.overheid.nl/toelichting-bij-datasets. 849 https://data.overheid.nl/toelichting-bij-datasets.

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synchronisation functions with data sources from government organisations. Moreover, the proposed Woo would impose more stringent rules on the active disclosure of government information than the Wob. To this end, the Act includes a list of categories on which information must be made public in principle. In addition, the Act would introduce a transparency register in which administrative bodies would be obliged to keep a public register of all the documents they hold.850 This register would give everyone access to documents that have been made public, or become aware of the documents that cannot be made available in machine-readable form. This implies that the register must enable everyone to consult all documents that are available in electronic format via an automated link.851 However, although some of the documents published via the portal are also available in English,852 documents are mostly made available in Dutch. Neither the Wob nor the Woo includes the obligation to translate documents. Moreover, the Forum Standardisation was established.853 The Standardisation Forum aims to promote interoperability and supplier independence through the use of open standards for digital data exchange in the public sector and advises the Dutch government on how open standards can promote the digital exchange of information between governments. The Forum makes proposals for the use of open standards and provides input for the Dutch views on international developments in the field of standardisation. Within the government, work is being done on standardisation of government information (e.g. the Dutch Open Action Plan for the Ministry of Economic Affairs and Climate Policy and the Ministry of the Interior and Kingdom Relations). The aim is to encourage the use of open standards in order to improve information exchange and communication between the government, businesses and citizens.854 Finally, within the field of geo-spatial data, in particular in the context of INSPIRE, standards have been or are being established and

850 Proposal Open Government Act (https://www.eerstekamer.nl/wetsvoorstel/33328_initiatiefvoorstel_voortman). 851 Quick Scan Impact Open Government Act, 13 December 2016 (https://www.eerstekamer.nl/overig/20161215/quick_scan_impact_wet_open_2/document). 852 https://data.overheid.nl/data/dataset?language=en-UK. 853 Staatscourant 2010 no. 4499 31 March 2010. 854 Letter of 30 May 2011 to the President of the House of Representatives from the Minister of the Interior and Kingdom Relations on re-use and open data (https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/viq8j0hov4yp).

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maintained by the Dutch standardisation organisation Geonovum.

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? The Dutch policy with regard to the charging of re-use was communicated in a letter to the House of Representatives in May 2011. The starting point laid down in this policy letter was that it was considered desirable for re-use to be free of charge. This principle remains intact.855 However, no rules on the exact method for calculating charges were introduced or were already in existence. Guidance was provided after the Act on re-use of public sector information was introduced, which states that possible charges should be limited to the marginal provision costs. According to this guidance, these costs concern the additional costs that have to be incurred in order to meet a re-use request (e.g. reproduction or dissemination costs, or costs of information carriers) and that can be directly linked to the distribution of the documents. The costs for an existing infrastructure may not be charged, nor can the costs for archiving, sales or marketing or an already existing helpdesk, unless additional costs are incurred to comply with the request for re-use. When documents are proactively made available for re-use online (e.g. via an open data portal) no marginal provision costs may be charged, since there is no request and the potential number of re-users can be very large.856 Under the Act on re-use of public sector information, bodies entrusted with a public task shall give prior notice of any charge made for re-use and of the factors taken into account in the calculation of that charge. On request, the calculation relating to a particular request for re-use must also be clarified (e.g. costs of information carriers and the costs that have to be incurred with regard to individual re-use requests).857

855 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 856 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 857 Act on re-use of public sector information, Article 9(4); Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

Article 9(3) of the Act on re-use of public sector information provides that by way of derogation, the amount charged by a body entrusted with a public task for the re-use of information in order to cover its costs in the performance of that task may not exceed its costs of collection, production, reproduction and dissemination, together with a reasonable return on investment, where such a return is defined by law. Costs shall be calculated on the basis of objective, transparent and verifiable criteria. Moreover, these costs must be directly linked to the information which is provided (e.g. overhead and personnel costs, helpdesk costs, management, development of a database and costs for the infrastructure). For some of these institutions, in addition to the charges that they may charge to users, they may also receive a contribution from the (central) government or from registrations for the performance of public tasks. When this is the case, the contribution from the central government and contributions from these registrations may not be included in the amount charged for re-use. Charges must be calculated on the basis of the net costs incurred by the institution in the production, collection and dissemination of the information. This follows from the principle that no fee may be charged for a provision of information that has already been financed from public funds.858The Explanatory Memorandum provides that for public sector information, a “reasonable return” on investment lies slightly above the usual capital costs, but well below the average return for commercial players. Since the costs of capital are related to the interest rates of credit institutions (which are based on the fixed interest rates on major refinancing operations of the European Central Bank), it cannot be assumed that a “reasonable return” on investment exceeds 5% of the fixed interest of the European Central Bank.11

858 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 11 Commission notice — Guidelines on recommended standard licences, datasets and charging for the reuse of documents (https://ec.europa.eu/digital-single- market/en/news/commission-notice-guidelines-recommended-standard-licences-datasets-and-charging-re-use).

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Beyond the guidance provided above, the exact interpretation of the criteria for charging is initially left to the departments of the relevant institutions, ensuring that the criteria fit into the specific charging system of the institutions.859 The Act on re-use of public sector information also specifies that detailed rules on charging criteria for this exception may be laid down by or pursuant to general administrative order.860 This would allow for the creation of uniform criteria, should it be necessary. However, this option has not been used so far. In order to determine which institutions qualify for this charging exception, it is necessary to determine whether there is an obligation on the part of the institutions to generate income to cover "a significant part" of the costs of carrying out their public duties. Under the Act on re-use of public sector information, an assessment must be made per organisation in order to establish whether alternative coverage could be found for a loss of income that would occur when provision charges would be reduced. Alternative coverage may include centralised financing or a small increase in registration fees. For possible future cases, it is indicated that the same careful consideration must be made, the starting point for which being that the number of exceptions is reduced to a minimum. Whether an institution meets the eligibility criteria for the charging exception position will be regularly reviewed, under the final responsibility of the Ministry of the Interior and Kingdom Relations.861

In the Netherlands, three institutions will be designated to fall under this exception because they have to operate while covering their costs. These are the Cadastre, Land Registry and Mapping Agency (Kadaster), the Road Traffic Authority (RDW) and the Chamber of Commerce. The reason for allowing these institutions to rely on the exception is that they have to finance their own operations to a large extent from the income generated by providing information they have produced. If this source of income were to be reduced, it would mean a loss of income that could not be borne in any other way.862

859 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 860 Act on re-use of public sector information, Article 9(5). 861 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 862 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

Article 9(2) of the Act on re-use of public sector information states that the amount charged by museums and libraries for the re-use of information shall not exceed their costs of collection, production, reproduction, dissemination, preservation and rights clearance, together with a reasonable return on investment. According to the definitions provided in this Act, this exception would apply to bodies entrusted with the public task of displaying cultural objects to the general public (i.e. museums) as well as publicly accessible library facilities subsidised or maintained largely by one or more municipalities, the Dutch National Library or the library facilities of a university referred to in the Annex to the Act (i.e. libraries).863 The calculation of the costs of preservation may also include the costs of the storage of data and of making the documents usable and findable. The clearance of rights refers to the time and capacity it may take to find the rightful claimant to the relevant copyrights and to have these rights transferred.864

As mentioned above, the Explanatory Memorandum to the Act on re-use of public sector information the Explanatory Memorandum notes that as far as libraries and museums are concerned,865 when calculating a “reasonable rate of return” on investment, the amount charged by the private sector for the re-use of identical or similar documents can be taken into account.12 Under Article 19 of the Public Records Act, in certain cases costs may be charged for the provision of information from archives. However, in those cases the provider must lay down rules regarding those charges, and the amount charged shall not exceed the marginal costs of reproduction, provision and dissemination. Moreover, archives

863 Act on re-use of public sector information, Articles 1 (e) and 1 (f). 864 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information. 865 As can be seen above, the Act does not apply to Archives. 12 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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must give prior notice of any charge made for re-use and of the factors taken into account in calculation that charge. When asked to do so, they shall also clarify the calculation relating to a particular request for re-use. With regard to archives, it has thus been decided that only marginal costs may be charged. To allow for them to also charge a reasonable return on investment is considered undesirable, as it concerns the re-use of documents that have already been produced or received by the public sector with public funds in the context of carrying out a public task.866

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

Beyond those set out above, no further criteria for charging have been introduced.

Under the Act on re-use of public sector information, the body entrusted with a public task may refuse re-use requests only for: 1) Information not publicly accessible under the law; 2) Information to which the rights are held by a third party within the meaning of the Copyright Act, the Related Rights Act or the

866 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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Databases Act; 3) Information held by a public service broadcaster, another body entrusted with a public service broadcasting task or a body operating under the responsibility of a public broadcaster or another body entrusted with such a task; 4) Information held by educational and research establishments; 5) Information held by cultural establishments other than libraries and museums; 6) Parts of documents containing only logos, crests and insignia; 7) Information relating to public personal data, re-use of which is incompatible with the purposes for which the data were collected.867 With regard to information not publicly accessible under the law, it can be noted that most government information will be made publicly accessible through the Wob. This Act rules that administrative authorities must provide, of their own accord, information on their policies and preparation and implementation thereof, whenever the provision of such information is in the interests of effective, democratic governance.868 However, in certain circumstances (e.g. when doing so might damage the security of the State or when its importance does not outweigh relations between the Netherlands and other states or international organisations) disclosure of information pursuant to this Act shall not take place.869 Such information may therefore not be made publicly accessible (also see question 11).

867 Act on re-use of public sector information, Article 2(1). 868 Act on Public Access to Government Information, Article 8(1). 869 Act on Public Access to Government Information, Articles 10 and 11.

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in order to deal with appeals, is the manner in which that body operates clear from national law? Are there any time limits related to appeals? For example, must the redress board come to a decision within a certain time period etc?

An impartial redress scheme at national level already existed under Article 3:45 of the General Administrative Law Act (Algemene wet bestuursrecht).870 This Article rules that if an objection may be made or an appeal may be lodged against an order (containing generally binding regulations), this shall be stated when notifying and giving communication of the order. At the same time it shall be stated by whom, within what time limit and with which authority an objection may be made or an appeal may be lodged. Under the Dutch appeal system, anyone who has the right to appeal against an order must first lodge an objection with an administrative body.871 The administrative body shall give its decision within six to twelve weeks, counted from the day after which the deadline for submitting the objection expired.872 The decision on the objection is then open to appeal under Article 8:1 of the General Administrative Law Act, under which an interested party may appeal such a decision to the administrative court. The ruling on this will be shared with the parties at the latest six weeks after the investigation was closed.873

870 General Administrative Law Act (http://wetten.overheid.nl/BWBR0005537/2017-12-01). 871 General Administrative Law Act, Article 7:1. 872 General Administrative Law Act, Article 7:10 (1). 873 General Administrative Law Act, Article 8:12(a)(4).

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on the public bodies?

Under the Act on re-use of public sector information, bodies entrusted with a public task shall give prior notice of any charge made for re-use and of the factors taken into account in the calculation of that charge.874 When asked to do so, the body concerned shall clarify the calculation relating to a particular request for re-use. However, no additional guidance is given with regard to this transparency obligation, except that it is mentioned that there are existing facilities that can be used for this, such as annual reports.875

874 Act on re-use of public sector information, Article 9(4). 875 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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There is no such obligation for entities not being bodies governed by public law to share data with public bodies. However, it may be noted that in some cases institutions or companies that are not governing bodies may also fall under the Wob and will therefore have to comply with Wob-requests. This is only the case if such institutions or companies fall under the responsibility of a governing body and have significant influence over that body.876 Moreover, the Wob provides that an administrative authority must ensure that the policy recommendations which the authority receives from independent advisory committees, together with the requests for advice and proposals made to the advisory committees by the authority, shall be made public where necessary, possibly with explanatory notes.877

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

Since there is no Dutch term that corresponds exactly to the PSI Directive concept of a “public sector body”, the Act on re-use of public sector information introduced the completely new concept of a “body entrusted with a public task”. Through this dynamic reference, a connection with the concept of a “public sector body” under the PSI Directive and its interpretation is sought.878 No issue with regard to the clarity of this concept was identified during this research.

876 https://www.rijksoverheid.nl/onderwerpen/wet-openbaarheid-van-bestuur-wob/vraag-en-antwoord/wat-is-een-wob-verzoek. 877 Act on Public Access to Government Information, Article 9(1). 878 Explanatory Memorandum 34 123, no. 3 on the Act on re-use of public sector information.

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The prohibition of exclusive arrangements laid down in the PSI Directive was one of the reasons the Dutch government reviewed its exclusive relationship with the publisher of its official publications (Sdu).879 In 2006, it was decided that a new database for official publications would be created, owned by the government. This did not alter the fact that the activities surrounding the daily addition of new publications to this database may also be outsourced. However, the framework agreement with Sdu publishers was terminated.

879 Proposal Electronic Publication Act, Kamerstukken II 2006/07, 31 084, no. 3, p. 18.

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Slovenia Country: Slovenia Author: Maja Lubarda Date: 20 December 2017

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (e.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

In 2003, Slovenia was not a member of the EU yet. Therefore, when the first Access to Public Information Act (APIA) was adopted on 5 March 2003 (Zakon o dostopu do informacij javnega značaja – Access to Public Information Act, Official Journal of the Republic of Slovenia no. 24/03, 5. 3. 2003), the Act did not include the right to re-use. However, the APIA of 2003 established the Commissioner for Access to Public Information which supervised the enforcement of the right to access public sector information. The 2003 PSI Directive was implemented with amendments to APIA in 2005 (Zakon o spremembah in dopolnitvah Zakona o dostopu do informacij javnega značaja – Act on Amendments to Access to Public Information Act, Official Journal of the Republic of Slovenia no. 61/05, 30. 6. 2005). The right to re-use was introduced and the Commissioner for Access to Public Information became the supervisory body for the enforcement of the right to re-use of public sector information. With the Information Commissioner Act (Zakon o Informacijskem pooblaščencu – Information Commissioner Act, Official Journal of the Republic of Slovenia, no. 113/05, 16. 12. 2005), the abovementioned body was transformed into the Information Commissioner which supervises both the right of access and re-use of public information as well as the right

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to the protection of personal data on 31 December 2005. This is an autonomous and independent body. As the annual report of the Ministry of Public Administration for 2007 shows,880 only 1,6% of the requests filed were requests for re-use, and 98,4% were requests for access to PSI.881 The number rose to 2-3% for requests for re-use through the following years until 2013 (included). In 2014, the number of requests for re-use rose significantly to 13,28% and then to 16% in 2015 and 18% in 2016. Most probably, one of the main reasons for the low numbers of requests for re-use of PSI until 2014 was the lack of awareness (among users as well as among public bodies) of the right to re-use. Therefore, users did not file many requests and even when their requests were rejected, they were often unaware that they had the right to appeal. Consequently, as the case law of the Information Commissioner - who is the appellate body for access to and re-use of public sector information - shows, the right to re-use was not enforced as many times as the right to access PSI.882 As the Commissioners receives few requests, appeals or (potential) re-users contacting the Ministry, the right to re-use was not a priority either for the Ministry of Public Administration or for the Information Commissioner. Their awareness activities focused more on the right to access PSI and the protection of personal data. When the EU started its activities for revising the PSI Directive, the Information Commissioner joined as one of the partners to the EU project LAPSI (Legal Aspects of Public Sector Information). It was through this project and other activities of the European Commission that both the Information Commissioner and the Ministry of Public Administration realised the value and importance of re-use. Consequently, they both

880 Unfortunately, the Ministry of Public Administration only started to carry out separate statistics for re-use and access in annual reports from 2007 onwards. In earlier annual reports there are no statistics on how many requests for re-use of PSI were filed. 881 The Ministry of Public Administration leads separate statistics for requests to re-use geospatial data from the Surveying and mapping authority of Slovenia (data from land cadastre, buildings’ cadastre, real-estate register, land border register and spatial units register) around additional 800 requests per year were made for re-use of such data (in comparison with about 100 requests for re-use of other PSI from other public bodies). 882 Only 22 decisions were issued on the right to re-use from 2005 until the 31.12.2012, while 1273 were issued on the right to access in the same period. Most of the early decisions were on the fact that the user did not request re-use but access to PSI. Therefore, substantive decisions on re-use were actually even fewer. Information Commissioner's caselaw is published online on the IC website in Slovenian at: https://www.ip-rs.si/ijz/.

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started working on raising awareness on the right to re-use (mostly through presentations and events for public bodies and users). This resulted in the abovementioned rise in requests for re-use of PSI (from 2-3% to 13,28%) in 2014 – before the implementation of the amendments to the PSI Directive. The 2013 PSI Directive was implemented with amendments to the existing Access to Public Information Act (Zakon o spremembah in dopolnitvah Zakona o dostopu do informacij javnega značaja - Act on amendments to Access to Public Information Act, Official Journal of the Republic of Slovenia, no. 102/2015, 23. 12. 2015).883 Before the implementation, the Ministry of Public Administration (MPA) organised several meetings and seminars for relevant stakeholders, including the relevant cultural institutions (museums, libraries and archives). The approach was very different from that in 2005,884 as the importance and value of re-use of PSI were internalised by the Ministry of Public Administration and the Information Commissioner. Therefore, the changes brought about by the 2013 PSI Directive were transposed to facilitate the use of PSI. Additionally, stakeholders were very much involved in the implementation process through the abovementioned meetings and seminars with the Ministry. This is also evident from the MPA’s approach to projects on open data. MPA has prepared an official open data portal for public bodies to proactively publish their PSI (it is mandatory to do so under APIA) and has provided guidelines on opening up PSI (Priročnik za odpiranje podatkov javnega sektorja - Manual on opening up public sector data, June 2016).885

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

883 Available in English here: https://ec.europa.eu/digital-single-market/en/news/2016-amendments-slovenian-public-information-access-act-english-translation. 884 https://www.ip-rs.si/en/legislation/access-to-public-information-act/. 885 Available in Slovenian at: http://www.mju.gov.si/fileadmin/mju.gov.si/pageuploads/OPSI_Prirocnik_1._izdaja_junij_2016.pdf.

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The Ministry of Public Administration.

According to the INSPIRE Directive implementation report for Slovenia (Report on providing infrastructure for spatial information in the Republic of Slovenia for the period of 2013-2015, 13. 5. 2016),886 the legislation regulating access and use of spatial data is in compliance with the Access to Public Information Act (Zakon o dostopu do informacij javnega značaja - Access to Public Information Act, Official Journal of Republic of Slovenia, no. št. 51/06 – official consolidated text, 117/06 – ZDavP-2, 23/14, 50/14, 19/15 – odl. US and 102/15, hereinafter: APIA). The Infrastructure for Spatial Information Act (Zakon o infrastrukturi za prostorske informacije - Infrastructure for Spatial Information Act, Official Journal of Republic of Slovenia, no. 8/10 and 84/15, hereinafter: ISIA), which lays down rules for the establishment and provision of infrastructure for spatial information in the Republic of Slovenia, implemented the INSPIRE Directive into national law. Access In accordance with ISIA, access to spatial data collections and to certain search services887 may be limited for data to which access is limited in accordance with APIA as it is defined as classified pursuant to the Classified Information Act.888 However, even in such cases, an applicant may

886 Available in English at: http://cdr.eionet.europa.eu/si/eu/inspire/reporting/envvzw_dq/INSPIRE_REPORT_2016_Slovenia.doc. 887 Services for searching spatial data collections and services regarding spatial data by metadata content and display of metadata content.

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demand access to spatial data collections and these services, claiming that public interest for disclosure prevails over public interest or interest of other persons not to disclose the requested information. Should the public body reject such a request, the applicant may appeal to the Information Commissioner. Additionally, access to spatial data collections and certain other services889 may be limited for data to which access is limited in accordance with APIA, when: - it is defined as a business secret in accordance with the Companies Act (Official Journal of the Republic of Slovenia no. 65/09 – official consolidated text, 33/11, 91/11, 32/12, 57/12, 44/13 – odl. US, 82/13, 55/15 and 15/17); - it constitutes personal data the disclosure of which would constitute an infringement of the protection of personal data in accordance with the Personal Data Protection Act; - it is acquired or drawn up for the purpose of a criminal prosecution or in relation to a criminal prosecution, or a misdemeanours procedure, and disclosure would prejudice the implementation of such a procedure; - it is acquired or drawn up for the purposes of an administrative procedure, and disclosure would prejudice the implementation of such a procedure; - it is acquired or drawn up for the purposes of civil, non-litigious civil procedure or other court proceedings, and disclosure would prejudice the implementation of such procedures.

888 Classified Information Act, Official Journal of Republic of Slovenia no. 50/06 – official consolidated text, 9/10 and 60/11. 889 The following services: - viewing services that enable minimal display, navigation, enlargement or reduction, panoramic view or transparent overlay of spatial data collections and metadata content display, - transfer services, enabling transferring of copies of spatial data collections or parts thereof and direct access, - transformation services, enabling spatial data collections adaptations in order to provide interoperability, - services enabling recall of other services regarding spatial data.

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Regardless of the mentioned provisions, ISIA in paragraph 4 of Art. 15 states that access to data must always be allowed, if the requested data concerns environmental emissions, waste, dangerous substances in a factory or information contained in a safety report, as well as other information if the Environment Protection Act stipulates so. This provision is identical to the provision of APIA which enables access to any PSI when the requested data concerns the mentioned environmental information. Re-use ISIA states that the use of services for searching spatial data collections and services regarding spatial data by metadata content and display of metadata content and viewing services that enable minimal display, navigation, enlargement or reduction, panoramic view or transparent overlay of spatial data collections and metadata content display are free of charge. Data, which are available through viewing services that enable minimal display, navigation, enlargement or reduction, panoramic view or transparent overlay of spatial data collections and metadata content display, may be in a format that disables their re-use for commercial purposes. Public bodies may charge “re-use of services charges” for use of: - transfer services, enabling the transferring of copies of spatial data collections or parts thereof and direct access, - transformation services, enabling spatial data collections adaptations in order to provide interoperability, - services enabling recall of other services regarding spatial data. The costs for use of these services may entail only maintenance of spatial data collections and spatial data services and must be clearly listed in the price list. The price list must be published in the public body’s catalogue of public information and on the geoportal for spatial information. The price list must also be available for the applicant upon request. The Decree on the content and management of the spatial data system underlying ISIA, also provides that data and services of spatial information system are freely accessible,890 taking into account the limitations in APIA and the Classified Data Act. The use of these data and

890 The following services: - downloading data, which is transferred to users from spatial information system,

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services is free, except for the parts limited by copyright and possible other rights of individual legal or natural persons. Use of these data and services is free for the purposes of spatial planning, space management, building, and insight into the legal situation. It should also be noted that the Real-Estate Recording Act (Zakon o evidentiranju nepremičnin, Official Journal of Republic of Slovenia, nos. 47/06, 65/07 – odl. US, 79/12 – odl. US in 61/17 – ZAID) provides that public bodies may charge re-use of data from a land cadastre, buildings’ cadastre, real-estate register, land border register and spatial units register in accordance with APIA provisions on charges. Access to these data is free of charge. ISIA provisions on re-use are not completely in line with the provisions of APIA on costs that may be charged for re-use. Therefore, the Information Commissioner considers that an applicant may request PSI either on the grounds of ISIA or on the grounds of APIA. Should an applicant request information on the grounds of APIA, APIA (and not ISIA) provisions apply. In decision no. 090-105/2016 of 22. 6. 2016, the Information Commissioner overturned the decision of the Surveying and Mapping Authority of the Republic of Slovenia (SMA) on the re-use of spatial data. In this case, the applicant requested access to data upon which the applicant and SMA concluded a contract on the transfer and use of the digital service of downloading spatial data. Furthermore, SMA issued a decision on re- use of the requested data for commercial purposes and charged the applicant with 467,59 EUR. SMA attached to the decision an invoice with cost specifications. It was evident from the SMA’s re-use decision that the charges for re-use were calculated on the grounds of the Real-Estate Recording Act. However, from the invoice it was obvious that the charges were calculated based on the provisions of ISIA and not APIA. The Information Commissioner explicitly stated in the decision that the public body had mixed up two different legal rights – the right to re-use PSI in accordance with APIA and the right to services in accordance with ISIA. The costs for ISIA services should not have been charged, as SMA can only charge costs according to APIA in re-use procedures - ISIA is an Act regulating spatial services and not the right to re-use PSI. Therefore, the Information Commissioner overturned the SMA’s decision and invoice and returned the matter to SMA for review. In its decision, the Information Commissioner instructed SMA to follow APIA provisions which regulate a completely different procedure and right. SMA is not

- use of basic services, such as access, search, viewing, transfer, adaptation of spatial information system data, - use of complex services, such as usage of tools enabling preparation and monitoring of legislation implementation in digital form and methods and procedures for supporting coordination, cooperation and including the public in the procedures of adopting legislation, - use of graphic and text part of spatial situation display.

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allowed to “join” APIA re-use procedure with ISIA use procedure.

As the answer to question no. 3 illustrates, ISIA provisions on re-use are not completely in line with provisions of APIA on costs that may be charged for re-use. The case mentioned in the previous answer shows that SMA interpreted APIA procedures differently. The main problem for them was charging – before amendments of APIA they could charge more. This is one of the main reasons why, in the transitional provisions of APIA, it is stated that a price for re-use may be charged for two years after enforcement of the amendment (by mid-January 2018) for records or databases regarding which a public body creates sufficient income for covering a substantial part of costs for their collection, preparation, reproduction and distribution – for records and databases of space management: database of government space coordinate system and database of remote sensing data and real-estate records (see Q20).

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The definition of a copyright work does not depend on the author (a public servant or not). If the criteria from the Copyright and Related Rights Act (Zakon o avtorski in sorodnih pravicah - Copyright and Related Act (Official Journal of Republic of Slovenia, no. 16/07 – official consolidated text, 68/08, 110/13, 56/15 in 63/16 – ZKUASP, hereinafter: CRRA)891 are fulfilled, a work is considered to be protected by copyright. Nevertheless, Para. 1 of Art. 9 of CRRA provides that “copyright protection shall not be provided to official legislative, administrative and judicial texts.” This means that even if a work created by a public body fulfils the elements of Art. 5 for a copyright work, it will not be protected by CRRA if it is considered an official legislative, administrative or judicial text. According to Art. 9 of CRRA, official texts are those created by institutions with legislative, judicial or administrative competences and authoritative powers; public procurement bodies may have such powers as well. Official texts are e.g. legal rules (laws, regulations, decrees, rules, etc.), official declarations, mandatory learning plans, decisions (judgments, patent decisions, rulings, decrees, official opinions, etc.). A work becomes an official text under Art. 9 of CRRA when it is officially published or officially adopted. If translations of these texts are published as official texts, they fall under the same regime, and will thus not be protected by copyright law. Additionally, APIA provides in Para. 10 of Art. 34(a) that metadata of public bodies are considered official texts in accordance with CRRA, which is why their re-use is free and free of charge. Consequently, if a public body creates a work that fulfils the conditions of Art. 5 and is not considered an official legislative, administrative or judicial text, it will be protected by copyright law as any other works created by any other author. The fact that requested PSI is subject to copyright, does not mean that access or re-use can be refused. If a public body is the copyright owner, it must allow access/re-use of PSI. When the copyright owner is a third party, requests for re-use must be rejected, while access may still be

891 “Copyright works are individual intellectual creations in the domain of literature, science, and art, which are expressed in any mode, unless otherwise provided by this Act.”, Art. 5 (1), CRRA.

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granted in the form of insight (viewing the document on a public body’s premises). Only reproduction of the work in digital/physical format is not allowed in such cases.892 This is especially important when the requested PSI is a product of a work for hire contract (a contract between a public body and a legal person (either a company or a freelancer) for the legal person to perform services (or sell goods) to the public body), when the public body has paid public funds. Unless the copyright has been transferred, the rights remain with the author, as provided by CRRA. Usually, public bodies do not provide anything regarding intellectual property rights in work for hire contracts and so copyright stays with the author, regardless of the fact that public funds have been spent. Consequently, if the work is considered PSI, the public body must reject requests for re-use and requests for access in the form of providing a physical or digital copy. When a copyright work is created by an employee in the execution of his duties or following the instructions given by his employer (copyright work created in the course of employment), it shall be deemed that the economic rights and other rights of the author to such work are exclusively assigned to the employer for the period of ten years from the completion of the work, unless otherwise provided by the contract. This provision also applies to public servants. However, there have been attempts to regulate for copyright of public servants to be transferred to the public body indefinitely. According to Legal Deposit Act (Zakon o obveznem izvodu publikacij – Legal Deposit Act, Official Journal of Republic of Slovenia, no. 69/06 and 86/09), Slovenian publishers893 are obliged to provide 4 copies of their publications894 to the National and University Library. Digital publications must be provided without electronic protection or with a relevant password to enable access. These copies are used for performing library-information services and must be available at least for study and research purposes. According to APIA, copyright protection does not apply to PSI if the information relates to environmental emissions, waste, dangerous

892 APIA, Art. 25, para. 2. 893 Publishers, issuers, distributors and other comparable subjects issuing, distributing or publishing publications in a way that they become available to the public. 894 Publications that (a) were either published in Slovenia or have been produced abroad and their publishers have their legal seat or branch in Slovenia, and are intended for distribution or availability in Slovenia and contain text, sound, visual or musical notation or their combinations; (b) were published abroad and are intended for availability or distribution in Slovenia and are in Slovenian or are adapted to the Slovenian market.

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substances in factories or information contained in safety reports as well as other information if the Environment Protection Act so stipulates. The Information Commissioner has issued several decisions on whether a requested document was copyright protected work or not, and whether access to it should be allowed or not. The Information Commissioner found that (among other things): - The public body must provide copyright work when the requested PSI is information related to environmental information (decisions nos. 090-225/2014/8 of 8. 5. 2015, 090-305/2015/7 of 11. 2. 2016) - Copies of copyright works created by employees of the public body (national broadcaster) must be sent to the applicant when the rightful owner is the public body (works were created in the course of employment) (decision no. 090-3/2015/6 of 17. 3. 2015) - Expert opinion that the work hired by the public body and paid for with public funds is copyright work. As the right to reproduction was not transferred to the public body, only insight into the document is allowed (decisions no. 090-235/2012/11 of 13. 12. 2012, 090- 254/2014/13 and 090-257/2014/13, both of 30. 1. 2015 confirmed by the Administrative Court rulings no. I U 398/2015-23 of 12. 1. 2017 and I U 399/2015-13 of 17. 4. 2015, 090-98/2015/6 of 11. 6. 2015, 090-138/2015/8 of 16. 6. 2015, 090-21/2016/3 of 6. 4. 2016, 090-161/2016/3 of 11. 8. 2016, 090-229/2016/5 of 10. 11. 2016, 090-11/2017/4 of 20. 1. 2017, 090-177/2017/5 of 5. 9. 2017) - Graphical and architectural maps and plans, which are a formal part of a building permit, are not copyright work as the permit is an official document and hence not protected by copyright (decisions nos. 090-140/2015/11 of 31. 8. 2015, confirmed by Administrative Court decision no. I U 1410/2015-18 of 9. 6. 2016, 090-126/2016/5 of 21. 7. 2016, 090-144/2016/3 of 22. 7. 2016, 090-143/2016/4 of 22. 7. 2016) - Nuclear plant decommissioning program prepared by an external expert but later send to relevant authorities as the document of the nuclear plant (the public body) is an official text as described in Art. 9 and is not afforded copyright protection (decision no. 090- 212/2010/18 of 11. 3. 2011) - Access to a copy of the requested information created by a third party cannot be denied on the grounds of intellectual property rights, as they were transferred to the public body (decisions nos. 021-102/2008 of 10.12.2008, 021-154/2008/9 of 13.01.2009, 090- 117/2009/12 of 15. 10. 2009, 090-111/2009/12 of 10. 11. 2009, 090-68/2010/9 of 12. 8. 2010, 090-37/2010/10 of 31. 8. 2010, 090- 90/2013/8 of 31.05.2013 - Access to a copy of the requested information created by a third party must be denied on the grounds of intellectual property rights, as they were not transferred to the public body – only access in the form of seeing the document in person is allowed (decisions nos. 090- 51/2009/10 of 03.06.2009, 090-81/2009/6 of 13.07.2009, 021-164/2008 of 28.07.2009, 090-143/2009/2 of 09.11.2009, 090-40/2009/8

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of 03.12.2009, 090-21/2010/10 of 31. 3. 2010, 090-21/2010/10 of 31. 3. 2010, 090-69/2010/7 of 16.09.2010, 090-159/2010 of 24. 1. 2011, 090-1/2011/8 of 11.02.2011, 090-189/2010/6 of 01.03.2011, 090-62/2011/2 of 20.04.2011, 090-132/2011/12 of 5. 10. 2011)

Section VI of the CRRA transposed the Database Directive into national law. If the criteria from CRRA are fulfilled,895 a public sector database is considered to be protected by the database right (a public servant or a public body (and not only private sector entities) may also be the authors of a database). When a public body database is also considered to be public sector information in accordance with the Access to Public Information Act (APIA), this cannot be grounds for refusal of access or re-use of the requested database. APIA only allows for the re-use of a database (individual information, part of database, is always considered separately) to be denied if the information is protected by the intellectual property rights of third parties. With regard to access, only copying (in digital or physical format) of a database that is also PSI is not allowed, while other forms of access (insight into the document) are allowed. This only applies in cases where there are third party database rights which have not been transferred to the public body. If the public body is the owner of the right to reproduction of the database, the right to access must be granted also in the

895 “Protection of a database under this Section shall apply to: 1. the whole contents of a database, 2. every qualitatively or quantitatively substantial part of its contents, 3. qualitatively or quantitatively insubstantial parts of its contents, when they are used repeatedly and systematically, which conflicts with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database. (2) Protection under this Section shall not apply to computer programs used in the making or operation of electronic databases.”, Art. 14.b, para. (1) of CRRA.

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form of providing digital or physical copies of the requested PSI. When a database is created by an employee in the execution of his or her duties or following the instructions given by his or her employer, or where it is created by a person under a contract for hire, it shall be deemed that the exclusive rights to such a database are exclusively and without limitations assigned to the employer or to the ordering party, unless otherwise provided by a contract (Art. 141(e) CRRA).

According to the Research and Development Act (Zakon o raziskovalni in razvojni dejavnosti - Research and Development Act, Official Journal of Republic of Slovenia, no. 22/06 – official consolidated text, 61/06 – Zdru-1, 112/07, 9/11 and 57/12 – ZPOP-1A), results of research and development activities financed with public funds are public, within the limitations provided by the intellectual property legislation. The government of the Republic of Slovenia in 2015 published the National Strategy of Open Access to Scientific Publications and Research Data in Slovenia 2015-2020,896 which provides open access to all reviewed scientific publications resulting from publicly funded research.897 A national pilot programme “Open Access to Research Data” is planned. On this basis, the government issued the Action Plan on the performance of the abovementioned National Strategy (government of the

896 Available in English at: http://www.mizs.gov.si/fileadmin/mizs.gov.si/pageuploads/Znanost/doc/Zakonodaja/Strategije/National_strategy_for_open_access_21._9._2015.pdf. 897 Id., p. 4.

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Republic of Slovenia, Action Plan for the Execution of the National Strategy of Open Access to Scientific Publications and Research Data in Slovenia 2015-2020, 24. 5. 2017).898 The Action Plan provides that amendments to the Research and Development Act, providing open access to reviewed articles and research data, are planned for May 2018. Additionally, amendments of the Copyright and Related Rights Act are planned for December 2018 in order to enable open access to reviewed scientific publications and research data.

Q8. Are there any national rules that regulate or affect the access and re-use of data held by public research and educational institutions (which are currently excluded by Article 1.2 (e) of the PSI Directive)? Please describe (if so). State bodies, local government bodies, public agencies, public funds and other entities of public law, public powers holders and public service contractors are obliged to provide access to and re-use of PSI. Public research and educational institutions are excluded by APIA only regarding the obligation to provide PSI for re-use - they are obliged to provide access to PSI as any other public body.899

898 Available in Slovenian at: http://www.mizs.gov.si/fileadmin/mizs.gov.si/pageuploads/Znanost/doc/Odprti_dostop/Akcijski_nacrt_-_POTRJENA_VERZIJA.pdf. 899 APIA, Art. 1.

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In accordance with the Access to Public Information Act, the public body shall deny the applicant’s request to access to or re-use of PSI if the request includes personal data the disclosure of which would constitute an infringement of the protection of personal data in accordance with the Personal Data Protection Act (Zakon o varstvu osebnih podatkov - Personal Data Protection Act, Official Journal of the Republic of Slovenia no. 94/07 – official consolidated text). 900 However, the protection of personal data is not an absolute exception but a relative one – the public body must provide access to PSI, even if it includes personal data: 1. When the requested information concerns the use of public funds, or information related to the execution of public functions, or an employment relationship of the civil servant (except in cases from point 1. and points 5. to 8. of the first paragraph of Article 6 of APIA and in cases when the Act governing public finance and the Act governing public procurement stipulate otherwise); 2. When the information concerns environmental emissions, waste, dangerous substances in factories or information contained in safety reports as well as other information if the Environment Protection Act stipulates it; 3. When public interest for disclosure prevails over public interest or interest of other persons not to disclose the requested information. In the limitations to the personal data exception from points 1. and 2. the public interest test has already been performed by the legislator and does not need to be performed by the public body again. However, the public body must in each individual case decide whether the requested personal data is actually related to e.g. an employment relationship of the civil servant. Namely, not all information related to a civil servant’s activities is also information related to his/her employment relationship (or public function). The proportionality principle of the processing of personal data needs to be adhered to in such cases as well. In judgement no. I U 227/2015 of 23. 4. 2015, the Administrative Court confirmed the Information Commissioner’s decision to deny the applicant’s request regarding a decision of the Invalidity Commission granting a judge the right for an invalidity pension. The Court elaborated that the right to access must be denied in this case as the requested data is personal data which is not directly connected to the judge’s public function. Similarly, in decision no. 090-164/2013/2 of 5. 8.2013, the Information Commissioner decided that not all parts of an evaluation result of a judge are public. Parts of the evaluation result related to the judge’s personal characteristics and abilities are not public, despite the fact that they are reflected in the judge’s work. In decision no. 090-190/2014/2

900 Available in English here: https://www.ip-rs.si/en/legislation/personal-data-protection-act/.

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of 4. 9. 2014, the Information Commissioner decided that personal data of police officers for whom a supervision procedure was started (regarding the checking of data in Police evidence) should not be public. Additionally, the Public Sector Salary System Act (Zakon o sistemu plač v javnem sektorju - Public Sector Salary System Act, Official Journal of Republic of Slovenia, no. 108/09 – official consolidated text, 13/10, 59/10, 85/10, 107/10, 35/11 – ORZSPJS49a, 27/12 – odl. US, 40/12 – ZUJF, 46/13, 25/14 – ZFU, 50/14, 95/14 – ZUPPJS15, 82/15 in 23/17 – ZDOdv) provides that the salaries in the public sector shall be public, whereby the information on the position, title or function, on basic salaries, bonuses and performance-related pay, with the exception of the length-of- service increment, shall be publicly accessible. Public access shall also be provided - in accordance with the procedure regulated by the Access to Public Information Act - to individual data on gross salary of any public servant and official without any deduction due to the execution, loans or other personal liabilities. It is not clear whether the re-use of PSI that is personal data is allowed in the abovementioned cases. In accordance with the Commentary to APIA (Zakon o dostopu do informacij javnega značaja s komentarjem (Access to Public Information Act with Commentary), Pirc Musar N., Kraigher Mišič T., Komac M., Lubarda M., Zatler R., Lemut Strle R., Uradni list RS, Ljubljana 2017), re-use is allowed in the abovementioned cases. However, one cannot be sure how the Information Commissioner would interpret the provision in case someone asked for re-use of personal data of all public servants. There has not been a case like that yet. However, in 2017, the IC issued several decisions on re-use of personal data from the Business Register of Slovenia, stressing the fact that the intended re-use was for the same purpose as the original purpose of processing of the data.901 This could mean that if the intended purpose of re-use of personal data was not identical to the original purpose of processing, re-use would not be allowed by the IC.

901 In the mentioned cases the applicants, who are regular re-users of the Business Register of Slovenia data, asked for additional information – personal addresses of legal representatives and owners, who are natural persons. The data on legal representatives and owners of companies (for natural persons – name, surname and personal address) are publicly available in the Business Register of Slovenia in accordance with the law. The law provides that search by natural persons who are legal representatives or owners of companies can only be allowed, if the user enters a combination of data: - full name and tax number; - full name and unique identity number; - full name and personal address. While information on tax numbers and unique identity numbers are not public, the information on personal addresses are. The applicants wanted to enable search by natural persons who are legal representatives or owners of companies also in their commercial business registers, which is why they requested for information also on personal addresses of these individuals. The public body in charge of the Business Register of Slovenia (AJPES) rejected their requests, while the

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Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

The need to ensure that only PSI that contains no personal data is There are no specific guidelines on PSI containing personal data. made available for re-use However, there is a rich case-law database of Information Commissioner decisions regarding access to PSI that is personal data. The obligation to anonymise or pseudonymise PSI containing personal All IC decisions are available online and are searchable by various data before making it available for re-use (possibly including search criteria (including “personal data” and “re-use”). methodologies or procedures for pseudonymisation or anonymization) Additionally, the Information Commissioner – in the role of data protection authority – regularly issues guidelines on personal data The obligation to conduct a data protection impact assessment or a protection. The relevant guidelines which are available in Slovenian similar risk assessment before making PSI containing personal data on the IC’s website are: available for re-use - Guidelines on personal data security in hospitals’ information The obligation to include data protection provisions in licenses for re- systems (Smernice za zavarovanje osebnih podatkov v use of PSI containing personal data (e.g. including restrictions on the informacijskih sistemih bolnišnic, 15. 2. 2008)902

Information Commissioner dismissed the AJPES decisions and ordered AJPES to provide the applicants with the requested data. AJPES filed law suits against IC decisions. The Administrative Court of Slovenia has not issued a decision on this matter yet. 902 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/Smernice_za_zavarovanje_OP_v_IS_bolnisnic_15022008.pdf.

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purposes of use of the PSI to ensure compatibility with the original - Guidelines on personal data protection in schools (Smernice za purposes) varstvo osebnih podatkov v šolah) - Personal data protection and the media (Varstvo osebnih podatkov in mediji, 26. 5. 2009)903 - Personal data protection in interconnection with personal data filing systems in public administration (Varstvo osebnih podatkov pri povezovanju zbirk v javni upravi, 15. 9. 2009)904 - Data protection impact assessments in eGovernment projects (Presoje vplivov na zasebnost pri projektih eUprave, 22. 7. 2010)905 - Guidelines for health services’ providers (Smernice za izvajalce zdravstvenih storitev, 2010)906 - Guidelines on privacy impact assessments in implementation of new police powers (Presoje vplivov na zasebnost pri uvajanju novih policijskih pooblastil, 14. 1. 2014)907 - Guidelines on personal data processing (Smernice o pogodbeni obdelavi, 16. 11. 2015)908

903 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/OP_in_mediji.pdf. 904 Available in Slovenian at: https://www.ip- rs.si/fileadmin/user_upload/Pdf/smernice/Varstvo_osebnih_podatkov_pri_povezovanju_zbirk_osebnih_podatkov_v_javni_upravi.pdf. 905 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/Presoje_vplivov_na_zasebnost.pdf. 906 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/brosure/Smernice_za_izvajalce_zdr._storitev_net.pdf. 907 Available in Slovenian at: https://www.ip- rs.si/fileadmin/user_upload/Pdf/smernice/Presoje_vplivov_na_zasebnost_pri_uvajanju_novih_policijskih_pooblastil_Smernice_IP.pdf.

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- Guidelines on the processing of personal data from the Central Population Register (Smernice o obdelavi podatkov iz centralnega registra prebivalstva, 21. 9. 2016)909 - Guidelines on personal data protection in employment relationships (Smernice za varstvo osebnih podatkov v delovnih razmerjih, 20. 12. 2016)910 - Guidelines for Centres for Social Work (Smernice za centre za socialno delo, 17. 7. 2017)911

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis? Documents for which citizens or companies need to prove a particular Yes. interest to obtain access According to Art. 6, para. 6, point 4 of the Access to Public Information Act, the public body shall deny the applicant's request to re-use information if the request relates to information for which another national law stipulates accessibility only to authorised persons.

908 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/Smernice_o_pogodbeni_obdelavi_web.pdf. 909 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/Smernice_o_CRP_web.pdf. 910 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/Smernice_-_Varstvo_OP_v_delovnih_razmerjih.pdf. 911 Available in Slovenian at: https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/Smernice_za_CSD_julij2017.pdf.

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This exception only applies when access to PSI is limited by law and not by any other legal instruments (e.g. a Decree).912 Additionally, the law must explicitly limit access to PSI.913 It should be noted that since 2005, when this provision came into force, the Information Commissioner confirmed this exception to access in only 3 cases.914 In all three cases, the applicants requested data from registers that public bodies manage as part of their public task. The IC decided that these were requests for re-use, as the applicants wanted the requested information for other purpose than specifically provided by the relevant legislation (e.g. an applicant wanted data on the scholarship holders for direct marketing). In all three cases, the IC rejected the re-use of the requested data as they presented personal data. However, it also found that re-use should be rejected on the grounds of the abovementioned provision (Art. 6, Para 6, point 4). In all three cases, the relevant legislation provided that the public body can only provide the requested data to authorised persons. Since 2005, there has not been a case in which

912 In its decision no. 021-21/2006/2 of 14. 8. 2006 the Information Commissioner explicitly stated that the mentioned exception to re-use does not apply where access to PSI is limited by judicial order and not by law. 913 Decisions of the Information Commissioner nos. 090-249/2013/2 of 20. 12. 2013, 090-288/2016/5 of 21. 2. 2107, 090-42/2017 of 21. 3. 2017, and 090-105/2017 of 28. 6. 2017. 914 Information Commissioner decisions nos. 021-63/2005/5 of 2. 9. 2005, 021-77/2005/5 of 17. 10. 2005 and 021-92/2005/18 of 21. 2. 2006.

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the IC found that the exception from Art 6, para 6, point 4 existed. These three decisions were all issued in 2005 when the provisions on re-use became enforceable and the Information Commissioner was still getting acquainted with the meaning of “re-use”. It is very probable that the Commissioner would decide otherwise should it handle these cases now. Documents relating to national security, statistical confidentiality or Yes. commercial confidentiality According to Art. 6, para. 6, in connection with para. 1, points (1), (2) and (4) of APIA, the public body shall deny the applicant’s request to re-use information if the request relates to: - Information which is defined as classified pursuant to the Classified Information Act (Zakon o tajnih podatkih - Classified Information Act, Official Journal of Republic of Slovenia no. 50/06 – official consolidated text, 9/10 and 60/11) - Information the disclosure of which would constitute an infringement of the confidentiality of individual information on reporting units in accordance with the National Statistics Act (Zakon o državni statistiki - National Statistics Act, Official Journal of Republic of Slovenia no. 45/95 and 9/01) - Information which is defined as a business secret in accordance with the Companies Act (Zakon o gospodarskih družbah - Companies Act, Official Journal of Republic of Slovenia no. 65/09 – official consolidated text, 33/11, 91/11, 32/12, 57/12, 44/13 – odl. US, 82/13, 55/15 and 15/17) Documents the supply of which is an activity falling outside the public Yes. task According to Art. 4, para. 1 of APIA, public information is information

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originating from the field of work of the public bodies occurring in the form of a document, a case, a dossier, a register, a record or other documentary materials, drawn up by a public body, by the public body in cooperation with another public body, or acquired from other persons. Therefore, only information originating from the field of work of the public body is considered PSI. Documents containing personal data Yes. According to Art. 6, para. 6, in connection with para. 1, point (3) of APIA, the public body shall deny the applicant’s request to re-use information if the request relates to personal data the disclosure of which would constitute an infringement of the protection of personal data in accordance with the Personal Data Protection Act. Documents held by educational and research establishments (other Yes. than university libraries) and documents held by cultural According to Art. 6, para. 6, point 3 of APIA, the public body shall deny establishments other than libraries, museums and archives the applicant's request to re-use information if the request relates to information held by bodies performing public service in the fields of education and research and cultural activities. Notwithstanding the mentioned provision, according to Art. 6(b), museums under the Cultural Heritage Protection Act (Zakon o kulturni dediščini - Cultural Heritage Protection Act, Official Journal of Republic of Slovenia no. 16/08, 123/08, 8/11 – ORZVKD39, 90/12, 111/13 and 32/16) and libraries under the Librarianship Act (Zakon o knjižnični dejavnosti - Librarianship Act, Official Journal of Republic of Slovenia, no. 87/01, 96/02 – ZUJIK, and 92/15) shall allow re-use of PSI to which no person holds intellectual property rights. When museums and libraries are

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themselves the holders of the intellectual property rights on requested public sector information, they shall allow its re-use if they re-use themselves that information or if they have allowed its re-use by at least one applicant. According to Art. 6(c)(1), the same provisions apply to the re-use of archival materials, if the request for re-use relates to archival materials: - Which are, in accordance with the Act governing archives, freely accessible to the public; - To which third parties do not hold intellectual property rights; and - Which are kept by an archive as part of the provision of a public service or which are under its own protection in accordance with the Act governing archives. Documents held by public service broadcasters and their subsidiaries Yes. According to Art. 6, para. 6, point 3, the public body shall deny the applicant's request to re-use information if the request relates to information held by bodies performing public services of public radio- television. Documents for which 3rd parties hold intellectual property rights Yes. According to Art. 6, para. 6, point 3, the public body shall deny the applicant's request to re-use information if the request relates to information protected by the intellectual property rights of third parties.

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Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

The right to re-use was already clearly linked to the right to access with the implementation of the 2003 PSI Directive into the Access to Public Information Act, as it provided the same definition as to what constitutes PSI. Therefore, all the general provisions on access regarding the definition of PSI, the procedure and the exceptions to access PSI, are also used for the re-use of PSI. The only difference is that in case of re- use, there are 3 additional grounds to reject the request: intellectual property rights of third parties, information held by bodies performing public service in fields of education and research, and cultural activities (except for libraries, museums and archives), and bodies performing public services of public radio-television. Additionally, in the request to re-use PSI, the applicant must provide information on the purpose he/she wishes to re-use the information for, which he/she would not be obliged to provide in the request to access PSI.

Q13. Cultural Heritage Institutions allowing re-use (Article 3(2))

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According to APIA, when museums and libraries are intellectual property rights owners on the requested PSI, they are obliged to enable its re- use, if they are re-using the requested PSI themselves or if they enabled at least one applicant to re-use it.

As evident from the documents presented in the 2013 PSI Directive implementation procedure (see predlog Zakona o spremembah in dopolnitvah Zakona o dostopu do informacij javnega značaja – Proposal for Act on amendments to Access to Public Information Act, 10th September 2015, p. 43),915 the Ministry of Public Administration interpreted the fact that libraries/museums allowed re-use of PSI to one applicant or are actually re-using the PSI themselves to mean that they are allowing re-use. Therefore, APIA now includes the mentioned provision in para. 2 of Art. 6(b).

Q14. Charging by Cultural Heritage Institutions (Article 6(4))

(c) Does national law (or case law or guidance) clarify how the concept of “reasonable rate of return” should be applied by cultural heritage institutions?

915 Available in Slovenian only at: http://imss.dz-rs.si/imis/66d6ab59d0eb2c5c28b5.pdf.

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The Access to Public Information Act and the underlying Decree (Uredba o posredovanju in ponovni uporabi informacij javnega značaja - Decree on the provision and re-use of public information, Official Journal of Republic of Slovenia, no. 24/16) on the provision and re-use of public information provide clear and detailed methods of calculating the price for re-use in case of libraries, museums and archives. APIA provides that the price for re-use shall not exceed the cost of collection, production, reproduction, dissemination, preservation, and clearance of rights, together with a reasonable return on investment. The price must be cost-oriented and calculated in line with the accounting principles applicable to the public sector bodies involved. The accounting basis for the price is the requested information. The Decree further provides that libraries, museums and archives must shape the price for re-use considering (1) the price of holding the requested information and (2) the share of re-use with regard to the extent of the anticipated re-use. The price set for an individual re-user must be determined with regard to the expected number of interested re-users, considering the extent of their re-use as well. Regardless of this (the number of interested re-users and the extent of their re-use) or when these factors are impossible to be determined, the public body may only be allowed to charge for one twentieth of the price, determined in the way described above. (1) The price of holding the requested information shall consist of the costs for collection, preparation and dissemination of data contained in public information, where the cost for establishing and maintaining the applicability of public information shall be considered separately, consisting of: - depreciation of required premises and equipment which are primarily used for data management; - cost of indispensable services in connection with data processing (information solutions, external data processing and the like); and - direct costs of public officials’ work in connection with data processing; - preservation costs; - rights clearance costs. (2) The share of re-use shall be calculated as a proportional share of the sum of use in official procedures and for other public tasks, and re- use. The share of re-use may amount to no more than 50 percent. If the share cannot be determined without disproportionate effort, only up to 20 percent can be considered as the share. If the public body must prepare or provide data to the applicant to facilitate re-use (partial access, copying, dispatching and similar), thus incurring costs to the public body, the public body may only charge these costs to the applicant in accordance with the provisions of the

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Decree regarding marginal costs. This Decree includes a detailed price list for the marginal costs. Libraries, archives and museums may include in the marginal costs the costs of distributing the data: mostly costs of reproduction (e.g. an additional copy of an USB key), costs of preparing the PSI, delivery costs and special requests’ costs (e.g. preparation and digitalisation on demand). When cultural institutions do charge marginal costs, they must determine these costs with a price list, which must be published in the catalogue.916 If the material costs were charged for access to information, the same costs could not have been charged for the re-use, except if they re- occurred for legitimate reasons or through the re-user’s fault.

916 Regarding catalogue see also answer to question no. 25.

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According to the APIA, a public body that has granted exclusive rights to re-use must - within 15 days from its decision - publicly declare and send to the Information Commissioner all the relevant data regarding the granting as well as a review of the granted exclusive re-use rights. The Information Commissioner manages the register of all granted exclusive rights. The register would have to be public. However, it does not exist. At this moment, the Information Commissioner has not received a single notification on the granting of exclusive rights, either by cultural institutions or by other relevant public bodies. The Decree on the provision and re-use of public information in Art. 26, provides which data should be included in the register: - name of the public body, granting the exclusive right of re-use; - the PSI for which the exclusive right to re-use was granted; - name and seat of the entity that was granted the exclusive right; - reasons for granting the exclusive right; - price and other conditions, under which the exclusive right was granted; - date of granting the exclusive right; - dates of regular checks of necessity of granting the exclusive right; - date of termination of the exclusive right. The APIA provides that where the period of exclusivity exceeds 10 years due to a special need for digitisation, its duration shall be subject to review during the 11th year and every seven years thereafter. Upon the review, the cultural institution must issue a formal decision, against which it is possible to appeal. The APIA or the underlying Decree do not specify which elements need to be assessed during the review. It is evident from the documents, presented in the 2013 PSI Directive implementation process, that technological, financial and administrative changes in the environment should be considered in the review procedure. It should be noted that APIA provides that cultural institutions may only grant the mentioned exclusive rights on public procurement, where advantage is given to entities who: - allow final users free or the cheapest access to digitised material; - will use the granted rights for the shortest time; - will guarantee the highest quality of digital format in accordance with relevant standards; - fulfil additional necessary conditions for handling the materials to be digitised.

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Given the above, the decision on the prolongation of the exclusivity period would most surely have to entail the reasons for such a decision, bearing the abovementioned criteria in mind.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

“where possible and appropriate” (Art 5(1)) According to the APIA, public bodies shall make their documents available through electronic means as much as possible. Therefore, the legislator changed the term “where possible and appropriate” into “as much as possible”. However, the APIA clearly states that this shall not imply an obligation, for the purposes of re-use of information, to provide conversion of the documents from one form to the other or to provide extracts from documents where this would involve disproportionate effort, going beyond a simple operation, nor it shall imply the obligation to continue with the creation of certain information only for the purposes of re-use of information by other bodies or other persons. “disproportionate effort” (Art 5(2)) The relevant Slovenian legislation does not provide clarity in respect to this term. However, the Information Commissioner interpreted the term “disproportionate effort” in case no. 090-47/2016/11 of 2. 9. 2016. The applicant requested re-use of the whole database of financial transactions made by all public bodies with data on the purposes of each transaction. For the public body to fulfil the applicant’s request, it would have to manually check and, if necessary,

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anonymise (where purpose of transaction would also disclose personal data) data on several thousands of transactions per day. For the public body, this would constitute 16 000 work hours per month. Consequently, the IC confirmed the public body’s decision that this would constitute disproportionate effort for the public body, which is why the request and the appeal were rejected. Disproportionate effort is only clarified with regard to obligations of cultural institutions. The APIA provides that disproportionate effort for cultural institutions means that PSI is undergoing a professional processing, restoration or digitisation procedure with respect to entire funds or large sets of materials or cannot be used due to damage to the original.

Q17. Dynamic data / APIs

Are there any requirements on public bodies or bodies governed by public law (or some of these bodies) to do the following, in respect of public sector information (or some of this information)?

(q) published online in their original, unmodified form to ensure APIA provides in para. 1 of Art. 10(b) that all public bodies should timely release enable the re-use of PSI, publishing PSI online and in open formats, (r) published and updated frequently at the highest possible level considering formal open standards, in machine readable form, of granularity to ensure completeness and accuracy together with metadata. They are not obliged to do so, if that would (s) published and maintained at a stable location, preferably on involve disproportionate effort, going beyond a simple operation. the highest organisational level within the administration, to

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ensure easy access and long-term availability In any case, all public bodies are obliged to provide on the Slovenian (t) published in machine-readable and open formats (CSV, JSON, national open data portal (OPSI):917 XML, RDF, etc.) to enhance accessibility - a list of all their data collections, together with metadata; (u) described in rich metadata formats and classified according to - all of their open data collections or links to websites, where these standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to collections are published, unless that involves disproportionate facilitate searching and interoperability efforts, going beyond a simple operation. (v) accessible as data dumps (massive outputs of data) as well as through application programming inter faces (APIs) to Additionally, the Ministry of Public Administration issued Guidelines facilitate automatic processing for opening up data following specific principles – data should be: (w) accompanied by explanatory documents on the metadata and 1. Complete (the whole database not just a part of it); controlled vocabularies used, to promote the interoperability 2. Original / raw – data should be published in their original form, of databases with the highest level of granularity, without additional aggregation, (x) subject to regular feedback from re-users (public grouping or modification; consultations, comments box, blogs, automated reporting, 3. Up-to-date; etc.) to maintain quality over time and promote public 4. Accessible – to the highest number of users and purposes, publicly involvement accessible, online, in open standards and formats and open publication protocols and database disclosure. 5. Machine readable and with metadata descriptions; 6. Non-discriminative – accessible to anyone, with no need to register or demonstrate purpose of re-use; 7. Not proprietary – databases should be in open formats, independent of proprietary software; 8. No licensing limitations – attribution is allowed, other limitations only exceptionally.

917See: https://podatki.gov.si/.

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Q18. Practical arrangements (Art 9)

Article 9 of the Directive obliges Member States to certain practical arrangements. Have such arrangements been made in practice (beyond mere transposition of Article 9 into law)?

On the basis of APIA provisions, the Slovenian Ministry of Public Administration introduced a national open data portal – OPSI.918 As already explained in the answer to question 17, the APIA provides that all public bodies should enable the re-use of PSI through online publishing of PSI in open formats, considering formal open standards, in machine readable form, together with metadata. They are not obliged to do so, if that would involve disproportionate effort, going beyond a simple operation. In any case, all public bodies are obliged to provide on OPSI: - a list of all their data collections, together with metadata; - all of their open data collections or links to websites, where these collections are published, unless that involves disproportionate effort, going beyond a simple operation. On the OPSI portal, Open Data of the whole Slovenian public sector is brought together and made available to the public. The portal, built on Open Source software, indirectly replaced the National Interoperability Framework Portal. While this portal already presented an extensive number of Open Data sets, providing Open Data was not its core activity. To ensure a primary focus on the users and on Open Data, this new portal is solely dedicated to Open Data activities. The purpose of the portal is twofold:

918 https://podatki.gov.si/.

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1) To provide a central catalogue of all the records and databases of Slovenian public bodies. In this catalogue, the metadata on all the Open Data from state authorities, municipalities and other public sector bodies is made available; 2) To be the single site where users can find data in a machine-readable format and with an Open Data licence. This includes Open Data collections which had already been published on different websites. The portal provides everyone with the right to free and easy re-use of freely available data published by means of 'open data' i.e. for commercial and non-commercial purposes. Open data is published on the portal under the CC BY 4.0 licence. To help share the stories of organisations making use of Open Data, the portal has a section presenting applications made with their data. A library section is included to provide additional information for visitors regarding Open Data or the policies around this subject in Slovenia and Europe. OPSI was ranked highest in the ESIF Data Quality Index by OpenBudgets.eu in 2017.919

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules? Slovenia introduced amendments. Already in 2005, the APIA and Decree on communication and re-use of information of public character provided detailed rules on charging the material costs and the price. Public bodies were allowed to only charge material costs for sending the information to applicants when: - access was requested;

919 https://okfn.de/blog/2017/04/esif-data-quality-index/.

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- re-use for non-commercial purposes was requested; - re-use for commercial purposes was requested, when the purpose of re-use was providing information, ensuring the freedom of expression, culture and art and the media's re-use of information. Charging for re-use was not allowed when a public body was already publishing the requested information online free of charge. When re-use for commercial purposes was requested and the purpose of re-use was not to provide information, ensuring the freedom of expression, culture and art and the media's re-use of information, public bodies could charge material costs for sending the information and a price for re-use. The price was not allowed to exceed the costs of collecting, producing, reproducing, and disseminating, together with a reasonable return on investment, and had to be adjusted for cost-effectiveness, set within a common accounting period and consistent with applicable accounting principles of the public body concerned. The cost calculation method for the price was public information itself, and the public body had to transmit it to every applicant upon request. The public body had to shape a price for re-use for commercial purposes annually, considering (1) the price of holding the requested information and (2) the proportion of re-use for commercial purposes with regard to the total extent of the anticipated re-use. The price set for an individual re-user had to be determined with regard to the expected number of interested re-users for commercial purposes, taking into consideration the extent of their re-use. Regardless of this (the number of interested re-users and the extent of their re-use) or when these factors were impossible to be determined, the public body was only allowed charge for one twentieth of the price, determined in the way described above. If material costs were charged for access to information, the same costs could not be charged for the re-use, except if they re-occurred for legitimate reasons or through re-users’ fault. The main change introduced in response to the 2013 amendment is that now only marginal costs may be charged for re-use, regardless of whether the re-use is requested for commercial or non-commercial purposes. The price can only be charged when re-use is requested from a public body that: - is required to, beside the public budgetary resources, generate revenue to cover at least 30% of its costs relating to the performance of its public tasks in accordance with the work or financing plan or programme, when the requested re-use is for commercial purposes; - is a library, museum or archive.

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Further rules on determining the price are as detailed as they were in the 2005 APIA. However, they now only apply to the mentioned bodies that are allowed to charge a price and not just marginal costs.

Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

Yes. The Access to Public Information Act provides in Art. 34(a) that the price for re-use (and not only marginal costs) may be charged by a public body that, beside the public budgetary resources, generates revenue to cover at least 30% of its costs relating to the performance of its public tasks in accordance with the work or financing plan or programme, when the re-use is for commercial purposes. Re-use for commercial purposes means that the applicant is a company or a business entity, established with the aim to make profit and performing gainful activity on the market, except when the PSI is re-used by a medium for the purpose of providing information. Whether or not a public body may charge a price (and not only marginal costs) for re-use is decided by the Ministry of Public Administration with a formal decision issued every two years. The Ministry issues a decision upon receiving an application, supported by numerical data from the adopted annual content and the financial program and report. The applicant may file a lawsuit against the Ministry’s decision. Therefore, the conditions for charging a price are that will need to be fulfilled are the following: 1. public bodies are required to generate revenue to cover at least 30% of their costs relating to the performance of their public tasks, 2. only public bodies who need to generate the mentioned revenue in accordance with the work or financing plan or programme, 3. the re-use is intended for commercial purposes (re-use by a business entity),

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4. a formal decision of the Ministry of Public Administration. So far, only the Agency of the Republic of Slovenia for Public Legal Records and Related Services920 has been declared as such a public body allowed to charge a price for re-use (a public body to which the exception has been applied because it satisfied the four conditions).921 However, it should be noted, that the APIA provides in Art. 30 of Final and Transitional Provisions of the Act amending APIA (Zakon o spremembah in dopolnitvah Zakon o dostopu do informacijah javnega značaja, Official Journal of the Republic of Slovenia no. 102/15) for special transitional rules: regardless of the provisions of Art. 34(a) of the APIA, a price for re-use may be charged for two years after enforcement of the amendment (by mid-January 2018) for records or databases regarding which a public body creates sufficient income for covering a substantial part of costs for their collection, preparation, reproduction and distribution: - for records and databases of meteorological and hydrological data, and data on air, water, and soil quality: point meteorological, hydrological and phenological data, and data on air quality, time and elevation data on Ljubljana, obtained by radiosonde measurements, meteorological radar data for Slovenia, chemical data on water and soil quality, and biological data on water quality; - for numerical results of weather analysis and very short-term forecasts and numerical results of meteorological model chain; - for records and databases of space management: database of government space coordinate system and database of remote sensing data and real-estate records.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

920 https://www.ajpes.si. 921 Ministry's decision is available here: http://www.mju.gov.si/fileadmin/mju.gov.si/pageuploads/IJZ/Odlocba-AJPES.PDF.

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This exception to the general principle of marginal costs has not been introduced into Slovenian law. Article 6(2)(b) has not been implemented.

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

Yes, they are provided for by the Access to Public Information Act (Zakon o dostopu do informacij javnega značaja - Access to Public Information Act, Official Journal of Republic of Slovenia, no. št. 51/06 – official consolidated text, 117/06 – ZDavP-2, 23/14, 50/14, 19/15 – odl. US and 102/15, hereinafter: APIA) and the Decree (Uredba o posredovanju in ponovni uporabi informacij javnega značaja - Decree on the provision and re-use of public information, Official Journal of Republic of Slovenia, no. 24/16). First of all, the Access to Public Information Act provides in Art. 34(a) that the price for re-use shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. The price must be cost-oriented and calculated in line with the accounting principles applicable to the public sector bodies involved. The accounting basis for the price is the requested information. Furthermore, the Decree on the provision and re-use of public information in Art. 21 provides that the public body must shape the price for re- use for commercial purposes annually, considering (1) the price of holding the requested information and (2) the share of re-use for commercial purposes with regard to the total extent of the anticipated re-use. The price set for an individual re-user must be determined with regard to the expected number of interested re-users for commercial purposes, taking into consideration the extent of their re-use. Regardless of this (the number of interested re-users and the extent of their re-use) or when these factors were impossible to be determined, the public body was only allowed charge for one twentieth of the price, determined in the way described above. (1) The price of holding the requested information shall, according to Art. 23 of the Decree, consist of the costs for collection, preparation and dissemination of data contained in public information, where the cost for establishing and the cost of maintaining the applicability of public information shall be considered separately, consisting of:

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- depreciation of required premises and equipment which are primarily used for data management; - cost of indispensable services in connection with data processing (information solutions, external data processing and the like); and - direct costs of public officials’ work in connection with data processing. (2) The share of re-use for chargeable commercial purposes shall, according to Art. 24 of the Decree, be calculated as a proportional share of the sum of use for official procedures and for other public tasks, and re-use for non-commercial purposes, un-chargeable commercial purposes and chargeable commercial purposes. The share of re-use may amount to no more than 50 percent. If the share cannot be determined without disproportional efforts, only up to 20 percent can be considered as the share. If the public body must prepare or provide data to the applicant to facilitate re-use (partial access, copying, dispatching and similar), thus incurring costs to the public body, the public body may only charge these costs to the applicant in accordance with the provisions of the Decree regarding marginal costs. The Decree includes a detailed price list for the marginal costs in Art. 17. According to para. 1 of Art. 25 of the Decree, if the material costs were charged for access to information, the same costs could not have been charged for the re-use, except if they re-occurred for legitimate reasons or through the re-user’s fault. The APIA also provides for certain types of information, that has been published online, to be available for re-use free of charge: 1) information on transactions made by public bodies and business entities liable for re-use of PSI (date of the transaction, currency and the amount of the transaction, account, name or business name of the credit recipient, except natural persons, the purpose of the payment); 2) data, published on the National Open Data Portal (OPSI); 3) metadata.

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The public body may reject the applicant’s request on the basis of the following provisions: 1) Procedural grounds – provided by Articles 46-48, 66, and 67 of the General Administrative Procedure Act (Zakon o splošnem upravnem postopku - General Administrative Procedure Act, Official Journal of Republic of Slovenia, no. Uradni list RS, št. 24/06 – official consolidated text, 105/06 – ZUS-1, 126/07, 65/08, 8/10 in 82/13) and Articles 12-26 of Access to Public Information Act (Zakon o dostopu do informacij javnega značaja – Access to Public Information Act, Official Journal of Republic of Slovenia no. 24/03, 5. 3. 2003, hereinafter: APIA) – the applicant must be eligible to file a request (a legal or natural person), the request must be intelligible and must include data on the applicant, necessary for issuing a formal decision. The applicant must specify the information he/she wishes to re- use, the way he/she wishes to acquire the contents of the requested information (classical or electronical record and usually also the form and carrier of the record), and the purpose he/she wishes to re-use the information for. Should any of the procedural requirements be missing in the request, the public body must first invite the applicant to fulfil the request. Should the applicant fail to do so in due time, the public body may reject the request. The applicant may appeal against this order. 2) Substantive grounds - Art. 5 of APIA provides a free access and re-use principle – any applicant has the right, under the same conditions as all other persons, to acquire the right to re-use information for commercial or non-commercial purposes. In Articles 5(a) and 6, the APIA provides for an exhaustive list of exceptions when access to (or re-use of) PSI may be denied. Furthermore, the APIA provides for exceptions to these exceptions – a list of situations in which access to (re-use of) PSI is allowed, even if the requested PSI fulfils conditions for one of the exceptions from Articles 5(a) or 6 of the APIA (e.g. access to personal data is not allowed, except if the personal data belongs to a public servant; access to trade secret is not allowed, except if the requested PSI consist of information on spending of public funds). Public bodies shall deny the applicant’s request for re-use, if the request refers to: - Information, access to which is forbidden or restricted under law even to parties, participants or victims in legal or administrative proceedings, or inspection procedure as governed by the law; - Information on which the law stipulates protection of confidential source; - Information which, pursuant to the Act governing classified data, is defined as classified; - Information which is defined as a business secret in accordance with the Act governing companies; - Personal data the disclosure of which would constitute an infringement of the protection of personal data in accordance with the Act governing the protection of personal data;

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- Information the disclosure of which would constitute an infringement of the confidentiality of individual information on reporting units, in accordance with the Act governing Government statistics activities; - Information the disclosure of which would constitute an infringement of the tax procedure confidentiality or of tax secret in accordance with the Act governing tax procedure; - Information acquired or drawn up for the purposes of criminal prosecution or in relation to criminal prosecution, or misdemeanours’ procedure, and the disclosure of which would prejudice the implementation of such procedure; - Information acquired or drawn up for the purposes of administrative procedure, and the disclosure of which would prejudice the implementation of such procedure; - Information acquired or drawn up for the purposes of civil, non-litigious civil procedure or other court proceedings, and the disclosure of which would prejudice the implementation of such procedures; - Information from the document that is in the process of being drawn up and is still subject of consultation by the public body, and the disclosure of which would lead to misunderstanding of its contents; - Information on natural or cultural value which, in accordance with the Act governing the conservation of nature or cultural heritage, is not accessible to public for the purpose of protection of (that) natural or cultural value; - Information from the document drawn up in connection with internal operations or activities of bodies, and the disclosure of which would cause disturbances in operations or activities of the public body; - Information protected by the intellectual property rights of third parties; - Information held by bodies performing public services of public radio-television or bodies performing public service in fields of education, research and cultural activities; or - Information, for which another Act stipulates accessibility only to authorized persons. The public body may exceptionally deny the applicant access to requested information in the event the applicant with one or more functionally connected requests manifestly misuses their right to access public information under the APIA or it is clear the request or requests are of vexatious character. This provision is interpreted very narrowly and restrictively. There are also a few laws that provide explicitly for the APIA not to apply. One of these is the Public Procurement Act (Zakon o javnem naročanju – Public Procurement Act, Official Journal, no. 91/15), which provides that APIA does not apply until the public procurement procedure is final. After that, the APIA will apply. Should an applicant file a request for documents from a public procurement procedure

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before it was final, the public body would have to reject it. It should be noted, that the Public Procurement Act provides specific procedures for parties to the public procurement procedure to access the documents of the procedure.

The Access to Public Information Act and the Information Commissioner Act provided for a redress mechanism in case of denied access or re- use of PSI. The mechanism has not changed and it is described below. APIA states that the request may be informal (oral) or formal (in writing). However, only the applicant who files a written request enjoys legal protection from unjustified refusal of his/her request. The applicant must file the request with the public body which supposedly holds the requested information. According to Article 17 of the APIA, the applicant has to specify: - The information he/she wishes to gain access to or re-use; - The way he/she wishes to access the requested information (consultation on the spot, a transcript, a copy, an electronic record); and - The purpose he/she wishes to re-use the information for. If the public body, which has received the request, does not hold the information, it must immediately, within the time limit of three working days, assign the request to the public body which is competent for resolving the request and notify the applicant. On the other hand, if the public body would be competent regarding the applicant's request but does not hold the requested information, it must issue a decision, denying re-use of the PSI on the ground that the information does not exist (the public body does not hold the information).

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a) Administrative silence When the public body does not respond to the applicant’s request or does not provide the PSI in due time (within 20 working days from receiving the request), the applicant can appeal to the Information Commissioner (IC). Upon receiving the appeal, the IC must inquire with the public body as to why there was no response. Should IC recognize that the reasons for delay were justified, it prolongs the deadline for the public body to decide on the applicant’s request (but for no longer than 30 days). However, if the reasons for delay are not justified, IC decides to take one of the following steps: - Take over the case and issue a decision instead of the public body; - The more frequent option is to demand from the public body the issuing of a decision within a certain time limit. Should the public body (even after receiving a written call to issue a decision from IC) fail to do so, IC issues the decision itself.

Note: When a public body decides to refuse the applicant's request but does not issue a formal decision and instead only responds by phone, email or a more informal letter to the applicant, this is also considered an administrative silence (after the 20 working days have passed). According to APIA, if the public body refuses the request for access/re-use in whole or in part, it must issue a formal decision.

b) Refusal by decision When a public body refuses the applicant’s request in whole or in part, the applicant must file the appeal with the public body. If the applicant first appeals directly to the IC, the IC has to immediately send the appeal to the public body. Upon receiving the appeal, the public body must first check all the procedural requirements – whether the appeal is allowed, whether the appellant has the right to appeal and whether the appeal was filed within the prescribed time limit (15 days after the decision). If any of these procedural requirements are not fulfilled, the public body dismisses the appeal by an order. The applicant may appeal against this order. If the procedural requirements are fulfilled, the public body sends the appeal to any of the entities whose interests might be affected by the appellate procedure (e.g. the requested information represents their business secret), inviting them to participate in the procedure and providing any relevant information or their position on the matter. The public body has the possibility to decide upon the appeal itself by amending its first decision. The applicant can also appeal against this 745

new, amended decision. If the public body finds that the procedural requirements are fulfilled and insists on its first decision, it sends the appeal, together with all the relevant documentation (including the requested PSI) to the IC. The public body has 15 days to check all the procedural requirements and send the appeal to the IC. If the public body fails to send the appeal to the IC, the applicant (or the IC) can report the public body to the Public Administration Inspectorate. Upon receiving the appeal and the documentation, IC also checks the procedural requirements. If those are not fulfilled, IC dismisses the appeal by order. Otherwise, IC decides on the subject matter. IC can: - refuse the appeal in whole or partially as unfounded and confirm the public body’s decision; - grant the appeal in whole or partially, overthrow the public body’s decision and order the public body to hand out the requested PSI or part of it for re-use; - grant the appeal in whole or partially, overthrow the public body’s decision and refer the matter back to the public body to issue another decision within 30 days; - make void the public body’s decision. IC has to issue a decision immediately and at the latest within two months from receiving the complete appeal. IC's decision is binding (not abiding by it constitutes a misdemeanour). However, any of the parties involved may begin an administrative dispute against the IC's decision before the Administrative Court. The appellate procedure is free of charge. If the applicant disagrees with the conditions or charges for the re-use, he/she files the appeal with the first instance body which sends the appeal to the IC. The procedure is identical to the one described above. If the applicant’s request relates to information of greater scope, the public body may require from the applicant an advanced deposit of the assessed amount for the full coverage of the costs of information transmission. In such a case, the applicant cannot appeal against the public body’s demand for the advanced payment, but can only appeal against the actual decision on the costs (an invoice is also considered a formal decision). If the applicant refuses to pay the advanced payment, the public body issues an order, ending the procedure. The applicant may also appeal this final order.

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Q25. Article 7 introduces transparency obligations in relation to the conditions for re-use, charges to be applied and method of calculation. Do the transposing/implementing provisions at MS level or any guidance documents issued by the relevant Ministry clarify the obligation on the public bodies? Yes, detailed provisions on methods for calculation and charges are included in APIA and in the underlying Decree (see answer to question 22). The same applies for conditions to re-use. According to APIA, the mandatory condition for re-use is attribution – naming the source of PSI. The APIA does not provide any information on how the source of PSI must be attributed. However, Ministry of Public Administration published guidelines on opening up PSI (Priročnik za odpiranje podatkov javnega sektorja (Manual on opening up public sector data), June 2016)922 in which they recommend providing the following data: the institution holding the PSI, website, where PSI was acquired, and date when PSI was acquired. A public body may also stipulate other conditions, if necessary for the purposes, explicitly listed in APIA: - for the purposes of providing updates and correctness of public information; - for proper understanding of public information; - for providing feedback to users. The Decree includes detailed rules on the method for calculation and a price list. Before the 2013 amendment, APIA already provided for an obligation for public bodies to continuously maintain and make public in an appropriate manner (official bulletin of the public body, online, etc.), as well as submit to the applicant for consultation on the spot, the

922Available in Slovenian here: http://www.mju.gov.si/fileadmin/mju.gov.si/pageuploads/OPSI_Prirocnik_1._izdaja_junij_2016.pdf.

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catalogue of public information held by the public body. Each public body must publish the price list in their catalogue of public sector information online as well as submit it for consultation on the spot to any applicant. The public body usually transmits all conditions on re-use of information, the price of re-use, as well as the cost calculation method which he/she will consider for special requests online in advance. The public body is obliged to notify the applicant on the payment of costs and, if the applicant so demands, give the applicant information on the amount (of costs) charged for the transmission of information in advance. If the applicant’s request relates to information of greater scope, the public body may require from the applicant an advance deposit of the assessed amount for the full coverage of the costs of information transmission. The Decree details the information that needs to be included in the catalogue of public information, which includes the price list or other conditions for re-use of public information. Additionally, all the public records and other digital databases, managed by the public body, need to be equipped with metadata, including metadata on any possible special conditions for re-use and any possible conditions regarding calculation of the price for re-use. Q26. Are there any national rules (or case law) requiring entities, not being a “body governed by public law” as referred to under Article 2.2a of the PSI Directive to share data with public bodies? These could be entities of commercial and industrial character or entities operating under public services concession (delegation) contracts. If so, please indicate: Which entities do these rules apply to and how are these entities defined? Which types of data do the rules apply to? For example, data with some sort of societal value? On what basis they are required to share? For example, because the data was gathered in the context of activities funded by the government in some way (such as grants, procurement contracts, or concessions granted to the private entity). According to the National Statistics Act (Zakon o državni statistiki - National Statistics Act, Official Journal of Republic of Slovenia, no. 45/1995 and 9/2001), reporting units923 - which include private bodies that are data holders - are obliged to provide to the National Statistical Office all

923 Reporting units are holders of official and other administrative data collections (records, registers, databases, etc.), and also natural and legal persons that are defined by the programme of statistical surveys as data providers.

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data determined by the annual programme of statistical surveys. In order to implement the programme of statistical surveys, the Office shall have the right to collect data from all existing sources. The Office may collect data on reporting units by using the methods and technical means of remote sensing and other means and methods of long distance data collection as well. According to the Electronic Communications Act (Zakon o elektronskih komunikacijah - Electronic Communications Act, Official Journal of Republic of Slovenia, no. 109/12, 110/13, 40/14 – ZIN-B, 54/14 – odl. US, 81/15 and 40/17), natural persons and legal entities providing public communications networks and/or electronic communications services must make available to the Agency for Communication Networks and Services of the Republic of Slovenia (AKOS), at its written request, all data and information at their disposal. For instance, documents and financial information that AKOS needs to perform its tasks (e.g. documents which will be used to develop market analysis).

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

According to para. 1, Art. 1. of APIA, entities of public law, public powers holders and public service contractors are considered to be public bodies. Entities of public law are defined in point 9 of Art. 3 of the Physical Assets of the State and Local Government Act (Zakon o o stvarnem premoženju države in samoupravnih lokalnih skupnosti, Official Journal of Republic of Slovenina, nos. 86/10, 75/12, 47/13 – ZDU-1G, 50/14, 90/14 – ZDU-1I, 14/15 – ZUUJFO and 76/15): state, local governments (provinces and municipalities), the Bank of Slovenia, public institutions, public economic institutions, public agencies, public funds and public companies. As it would be very difficult for the Information Commissioner to establish whether a particular entity fulfils the mentioned APIA criteria, APIA also provides in Art. 3(b) that a public register of all legal persons liable (public bodies, including entities of public law, public powers holders and public service contractors) for providing PSI is established. According to APIA, the organisation competent for public and legal records and services incorporated under the law governing payment transactions shall establish and keep a public register of legal persons liable, which shall contain information on, among others, entities of public law, public powers holders and public service contractors. The register also contains information on the legal grounds for public authorisation awarded or public service provided and other legal grounds for registration

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in the register of persons liable. The registration in and removal of the persons liable from the register of persons liable is based: 1) Directly on data from official records: - the Register of Companies and Business Register of Slovenia, - the Central Book Entry Securities Depository, - other official records. 2) Submission of the ministries, the authorities of self-governing local communities, and other entities of public law to the register for those entities of public law, public service operators and holders of public mandates, and legal entities of private law which are not companies, of which one of the founders is a ministry or an authority of self-governing local community or other entity of public law. If the entity liable is under the competence of the state, the on-line application is to be submitted by the competent ministry. If a legal entity is registered in the register of entities liable, it shall be presumed it is an entity liable under APIA. The entity may prove the opposite in a procedure regarding a request to access/re-use of PSI. In such cases, the entity must prove: - it does not meet the requirements under this Act for a liable entity, or - the public information requested was created when the business entity was not subject to dominant influence of entities of public law.

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No.924

924 However, in practice some issues have been noted. In particular, certain re-users mentioned (unofficially) that they do not wish to appeal against public bodies charging them for re-use very high costs, which are not necessarily in line with the APIA provisions. Namely, because the costs of re-use were so high, only these re-users could afford re-use and, therefore, did not need to share the re-used information market with other potential re-users, who could not afford re-use.

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Sweden Country: Sweden Author: National expert for Sweden (Spark Legal Network) Date: 20 December 2017

Q1. Please describe the implementation strategy of your country of the PSI Directive. In particular, how did the 2003 PSI Directive and its modifications of 2013 enter the national legal order? (e.g. dedicated law on access and/or re-use, competition provisions, sectoral rules etc). Has the responsible governmental authority issued any guidelines or other policy documents that complement or clarify the national implementation measures?

In Sweden, PSI has historically been viewed from a democratic constitutional viewpoint relating to rights of access rather than as a source for creating economic wealth. Markets for public information have existed based on the right of public access to public information, even though the PSI input to these markets has not generally been regulated under a framework. The Swedish government, based on the regulations for public access, informed the European Commission on 27 June 2005 that the 2003 PSI Directive in the government’s opinion was fully implemented into Swedish law through existing national regulations. However, the European Commission questioned the Swedish implementation and claimed in a letter of formal notice dated 23 March 2007 that Sweden had failed to introduce regulation and take other action, or failed to adjust the existing regulation in view of the PSI Directive. The Commission also argued that Sweden had retained management and contractual practices which were contrary to the Directive. The Commission therefore concluded that Sweden had failed to fulfil its obligations under the Directive. This mainly regarded the implementation of Articles 2, 4, 6, 7, 8 and 10 of the PSI Directive. The Swedish government then decided to partially implement the Directive through Ordinance (2008:31) concerning conditions of re-use of information from government agencies. However, this regulation only applied to government agencies. The Commission claimed in a supplementary letter of formal notice dated 17 October 2008, that the Swedish implementation was incomplete and incorrect, particularly concerning Articles 2, 3, 4, 5, 6, 7, 8, 10 and 11 of the PSI Directive. Because of a lack of specificity, precision and the questionable binding

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force it could not be guaranteed that either the objectives or the duties imposed by the PSI Directive were met in a complete and satisfactory manner. To ensure proper implementation of the Directive into Swedish law, the Swedish government appointed a group within the government offices of Sweden to investigate how a proper implementation of the Directive could be ensured. Part of the assignment was to propose a new law and necessary amendments to existing laws and regulations. The final report of this group was submitted on 30 June 2009 and resulted in the Swedish Act (2010:566) on the re-use of documents from the public sector (the Swedish PSI-Act).925 The Act entered into force on 1 July 2010. The 2013 modifications were implemented through Bill 2014/15:79, which made changes to the Swedish Act (2010: 566) on re-use of documents from public administration. The legislative amendments entered into force on 1 July 2015. The scope of the Act was widened to include university libraries and collective cultural institutions consisting of archives, libraries and museums. Furthermore, a new general principle that PSI should be made available for re-use was included, as well as the requirement that PSI should be made available in an open and machine-readable format together with the associated meta data. The rules on fees were changed as well. The fees should now correspond to the marginal costs for reproducing, providing and disseminating documents. The basis for calculating the fees shall be determined and published before-hand. The exceptions from the prohibition of exclusive agreements have been supplemented with a specific rule regarding the digitisation of cultural resources. The government has not produced general written guidelines, and there is a rather fragmented state of affairs in relation to guidelines for Open Data and the re-use of PSI (i.e. there exist several semi-offical reports and websites such as digisam.se, öppendata.se and vidareyttnyttjande.se). However, the legal history (preparatory works) of the Swedish PSI-Act are quite extensive, and several guidance papers were produced by public organisation (e.g. e-delegationens vägledning).926 The National Archives were recently commissioned by the government to promote government authorities/agencies' efforts to make data available for re-use. From 1 July 2016 onwards, the National Archives have managed and developed the web sites www.oppnadata.se and

925 Reg. Fi2009/4998. 926 For three guides to the implementation of the (revised) PSI Directive in Sweden: https://www.w3.org/2013/share-psi/lg/Sweden/. For guidance in reference to cultural institutions: http://www.digisam.se.

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www.vidareyttnyttjande.se. Indeed, the two website are merging under www.oppnadata.se. The portal, www.oppnadata.se, works as a directory, meaning it directs users to data point sources held by the data owners (the portal is not a data depot). The goal is that the portal should be easy to use, have clear licenses and conditions, support data retrieval and enable sharing of resources and solutions. One can download metadata on all data amounts on www.oppnadata.se with DCAT-AP in RDF. One can also access data sets metadata via the CKAN API. Currently there are 531 datasets on www.oppnadata.se (27 November 2017). The National Archives are now also responsible for the website http://vidareutnyttjande.se/ which contains information and guidance – although this is not binding on the public agencies when making PSI available for re-use.

Q2. Which Ministry (or other entity) is responsible for implementation in the national legal order in your Member State? E.g. which Ministry was responsible for early drafts etc?

It is the executive powers (“Regeringen”) that prepare Bills for the Parliament. Both the Swedish Act (2010: 566) (on re-use of documents from public administration) and the latest amendments to the PSI legislation were prepared by the Department of Finance, based on research and preparation done by some public officials published in the official series SOU 2014:10.

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The Swedish constitutional right to access documents, which is a general and far-reaching right, does not include that an individual is entitled to obtain documents in digital form. Moreover, the regulation on PSI in Sweden does not require the authorities to provide access in electronic format. However, the Constitution does not forbid authorities to provide documents electronically. The rules that follow from the so-called Inspire Directive - through paragraphs 5 and 6 of the Act (2010: 1767) on geographic environmental information together with chapter 4, section 2 of the Regulation (2010: 1770) on geographic environmental information (both Acts are the result of the implementation of the Inspire Directive) - require the authorities to provide data electronically (at least in-between agencies).

The Swedish Lantmäteriet - the Swedish mapping, cadastral and land registration authority – together with 19 other authorities have agreed to have one harmonised license in reference to geo data. According to officers at Lantmäteriet, this has made the interface between the Swedish legislation implementing the Inspire Directive and the PSI Act to work more smoothly. This, since the common license for sharing among public bodies with respect to spatial data, ensuring spatial data for re-use is available under the license and in a usable format.

Q5. Are there any national rules (or case law) limiting the exercise of copyright protection in order to ensure public access to information

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(e.g. cultural data), or in order to preserve competition etc.? Please describe (if so).

There is a general exception for copyright to some public documents in the Swedish Copyright Act.927 According to the Act, copyright does not subsist in (1) laws and other regulations; (2) decisions by public authorities; (3) reports by Swedish public authorities; and (4) official translations of texts mentioned under 1–3.928 Anyone is thus entitled to use such documents.929 The author is entitled to remuneration except when the use occurs in connection with (1) the activities of a public authority or (2) a report of a legal proceeding or a case in which the work appears and the work is used only to the extent necessary for the information purpose.930 The public may claim copyright to the following: 1. maps, 2. technical models, 3. computer programs, 4. works created for educational purposes, 5. works which are the result of scientific research, 6. works of drawing, painting or engraving,

927 Lag (1960:729) om upphovsrätt till litterära och konstnärliga verk. 928 Article 9. 929 Article 26(a). 930 Article 26(a).

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7. musical works, 8. works of poetry, or 9. works copies of which are made available to the public through public authorities in connection with commercial activities. In reference to the PSI legislation, these rules are of interest. Indeed, it is on this ground that Swedish public authorities claim copyright. It may also claim specific sui generis database protection for data bases.931 The database protection is somewhat limited under Swedish law and included in Article 49 of the Swedish Copyright Act, as a neighbouring right to copyright: ”Anyone who has produced a catalogue, a table or another similar product in which a large number of information items have been compiled or which is the result of a significant investment, has an exclusive right to make copies of the product and to make it available to the public. The right under the first paragraph lasts until fifteen years have elapsed from the year in which the product was completed. If the product has been made available to the public within fifteen years from the completion of the product, the right shall, however, last until fifteen years have elapsed from the year in which the product first was made available to the public.” Indeed, there has been an discussion whether Article 49 of the Swedish Copyright Act in fact covers all aspects of the sui generis data base protection under EU law. According to the Swedish Competition Act,932 the Stockholm District Court may prohibit certain conduct, in the context of offering goods or services, by a municipality, county council, state or companies controlled by either of these bodies; or an activity, consisting of offering goods or services, from being carried out by municipalities, county councils or companies controlled by either of these bodies. If the conduct or activity (i) distorts, by object or effect, the conditions for effective competition on the market; or (ii) impedes, by object or effect, such competition from occurring or developing, it may be prohibited. The prohibitions can be issued by the Stockholm District Court through an injunction, further to an application by the SCA. Conduct that is found to be justifiable on public interest grounds and activities, which are

931 Article 49 the Swedish Copyright Act. 932 Konkurrenslagen (SFS 2008:579). Chapter 3, section 27.

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compatible with law, may not be prohibited. The rule for sales activities carried on by public entities in competition with private undertakings has applied from 1st January 2010. This means that the SCA has recourse to Stockholm City Court in order to request the prohibition of sales activities by public entities that are considered to distort or impede competition. The interplay between this rule and the Swedish PSI Act has not yet been fully investigated by the SCA and the courts. Nonetheless, a public sector body which infringes the Swedish PSI Act when re-using documents may, if the requirements are fulfilled, be violating the specific rule regarding sales activities carried out by public entities stipulated in the Swedish Competition Act. The Swedish Competition Act in general may thus become an enforcement mechanism of the PSI Act.

See Q5.

As seen above, competition law may for example limit the excises of intellectual property law. The basic principle in Sweden is that the individual (as well as the employed) researcher owns the results of his or her research (i.e. writings,

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drawings, technical inventions). Anyone who has done literary or descriptive work also has the exclusive right to that work.933 The rule is general, and thus does not apply specifically to researchers, but can extend to agreements concerning assignments or employment relationships. An employee thus often has to grant their employer a right to use any material that he or she was employed to create. With regard to patentable inventions, there is an exemption in place for teachers in university and college situations. Such researchers are exempted from otherwise enforceable principles laid down in the 1949 law on the right to an employee's inventions.934 As a starting point, a researcher therefore has full ownership rights to his or her research result of this kind, if another agreement has not been reached. However, a particular college may reach agreements with its employees concerning, for example, rights to computer programs. When collaborating with, for example, American scholars, one should note that they have no such exemption in place, and that patents there belong to the universities. Thus, in Sweden there are no national rules in place which would provide the public with access to researchers’ results, while collective bargaining agreements and other employment related agreements may give universities such access.

The general constitutional right to access public documents is still applicable, even though the Swedish PSI Act exempts these institutions. Thus, a re-user may access and re-use such data based on the general constitutional right to access public documents, even though the Swedish PSI Act is not applicable. The general constitutional right – laid down in the Freedom of the Press Act - to access public documents

933 Act on Copyright (SFS 1960:729). 934 Lag (1949:345) om rätten till arbetstagares uppfinningar.

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reads: "To encourage the free exchange of opinion and availability of comprehensive information, every Swedish citizen shall be entitled to have free access to official documents."935 The Act also states – with regard to what constitutes an official document – that:  All documents contain information of some kind: text, images or information stored in some other format, for example, on a computer.  A document is classified as official if it has been submitted to, was drawn up by or is in the keeping of a public authority.  In principle all official documents are public and must be made available to anyone wishing to read them.  Official documents may in certain cases be classified as secret if they contain information relating to the security of the realm, the personal or financial circumstances of individual citizens or crime prevention activities by public authorities.  Memoranda and draft decisions are not normally classified as official documents. Under the Act, access to public documents may be restricted if they protect the following interests:  The security of the realm or its relations with another state or international organisation  The central fiscal, monetary or currency policy of the realm  The inspection, control or other supervisory activities of a public authority  The interest of preventing or prosecuting crime  The economic interests of the public institutions  The protection of the personal or economic circumstances of private subjects  The preservation of animal or plant species So, if the data held by the public research and educational institutions fulfils the requirements of being an “official document” and the other requirements laid down in the Freedom of the Press Act, and the data is not deemed confidential under the Public Access to Information and Secrecy Act,936 a re-user may access and re-use this data, even though the PSI Act is not applicable.

935 Chapter 2, Article 1, Freedom of the Press Act (Tryckfrihetsförordningen (SFS 1949:105)).

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Q10. Are there any guidelines from data protection authorities, PSI supervisors or other regulators on complying with data protection law when re-using PSI, for instance addressing:

As stated above, the government has not per se produced general written guidelines, and there is a rather fragmented state of affairs in relation to guidelines for Open Data and the re-use of PSI (i.e. there exist several semi-offical reports and websites such as digisam.se, öppendata.se and vidareyttnyttjande.se). However, the legal history (preparatory works) of the Swedish PSI-Act are quite extensive, and several guidance papers were produced by public organisation (e.g. e-delegationens vägledning).937

936 Offentlighets- och sekretesslagen 2009:400. 937 For three guides to the implementation of the (revised) PSI Directive in Sweden: https://www.w3.org/2013/share-psi/lg/Sweden/. For guidance in reference to cultural institutions: http://www.digisam.se.

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The need to ensure that only PSI that contains no Generally, these guidelines state that personal data should not be made available.938 personal data is made available for re-use The obligation to anonymise or pseudonymise PSI Generally, these guidelines state that the data provided need to be anonymised. containing personal data before making it available for re-use (possibly including methodologies or procedures for pseudonymisation or anonymization) The obligation to conduct a data protection impact There is no general obligation to conduct a data protection impact assessment. assessment or a similar risk assessment before However, the authorities need to abide by data protection regulation and the guidance making PSI containing personal data available for re- websites (e.g. vidareyttnyttjande.se does stipulate that the authorities need to take use data protection seriously).939 The obligation to include data protection provisions There is no such obligation. In general, the Swedish public authorities believe it is the in licenses for re-use of PSI containing personal data duty of the re-user to abide by the data protection rules in reference to his or her (e.g. including restrictions on the purposes of use of activities. the PSI to ensure compatibility with the original purposes)

Q11. Do the national rules on re-use exclude the following categories of documents? If so, please indicate which documents are excluded on that basis?

938 https://oppnadata.se/juridik-och-rekommendationer/begransningar-grundade-i-personuppgiftslagstiftningen/. 939 http://vidareutnyttjande.se/juridik-och-rekommendationer/begransningar-grundade-i-personuppgiftslagstiftningen/.

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Documents for which citizens or companies need to prove a particular The Swedish PSI Act does not exclude these documents. interest to obtain access Documents relating to national security, statistical confidentiality or The Swedish PSI Act is not applicable to documents that are commercial confidentiality confidential according to the Public Access to Information and Secrecy Act. 940 Documents relating to national security, statistical confidentiality or commercial confidentiality may under certain requirements fall under this Act. Documents the supply of which is an activity falling outside the public The Swedish PSI Act is not applicable to documents that are supplied task the context of a competitive task (i.e. supplied in the context of a non-public task). Documents containing personal data The Swedish PSI Act is not applicable to documents containing personal data (i.e. the data need to be anonymised). What constitutes personal data should be assessed under the Swedish Data protection Act.941 Documents held by educational and research establishments (other The Swedish PSI Act is not applicable to documents held by than university libraries) and documents held by cultural educational and research establishments (other than university establishments other than libraries, museums and archives libraries) and documents held by cultural establishments other than libraries, museums and archives.

940 Articles 1 and 3 Swedish PSI Act. 941 Personuppgiftslag (1998:204).

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Documents held by public service broadcasters and their subsidiaries The Swedish PSI Act is not applicable to documents held by public service broadcasters and their subsidiaries. The public broadcasters are limited companies owned by a foundation controlled by the government and are not encompassed by the Swedish PSI Act. Moreover, many of their productions are covered by third party copyright. Documents for which 3rd parties hold intellectual property rights The Swedish PSI Act is not applicable to documents for which third parties hold intellectual property rights.

Q12. How is the right of re-use (Art 3 PSI Directive) framed in national law? Is the right clearly linked to the right of access? Is the relationship between access and re-use clear? Please describe.

Neither the right to re-use nor the link between the right to access public documents and re-use is clear. The Swedish PSI Act states, Article 5, that re-use by the public of documents provided is permitted, taking into account any legal restrictions. Thus, it is a logic conclusion that the PSI Act only encompasses documents which are publicly accessible. However, this is not clearly stated. The Swedish government also chose to state that right to re-use is a principle under the PSI Act (i.e. not a right) (see the preparatory works942). Hence, that the authorities still have some kind of possibility to decide what documents to provide for re-use, and can still decide - within the realms of what data is considered public under the constitution and not confidential under the Public Access to Information and Secrecy Act - what information is available for re-use.

942 2014/15:79, pp. 15 et seq. and 72 et seq.

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The relevant sections of the Swedish PSI Act read as follows: Section 2 The Act applies to the re-use of documents provided by government and municipal authorities. The Act also applies to the re-use of documents provided by the bodies listed in the Annex to the Public and Privacy Act (2009: 400), if the documents are included in the activities specified therein, as well as documents provided by public limited companies, commercial companies, economic associations and foundations where municipalities or county councils exercise a judicial influence. These bodies shall be equated with the authorities in the application of this Act. (2015: 289). Section 3 This Act does not apply to documents that 1. Are not publicly available, 2. Are provided in the context of an authority's competitive activities, 3. An authority provides another authority, except when it appears that the documents are to be used for competitive activities, 4. Exist at other educational or research institutions than university libraries, 5. Exist at other cultural institutions than archives, libraries and museums, 6. Make computer programs, or 7. Third person is entitled to copyright (1960: 729) for literary and artistic works (2015: 289). Section 4 The Act does not affect the exercise of such exclusive rights pursuant to the Patents Act (1967: 837), the Pattern Protection Act (1970: 485), the Company Act (1974: 156), the Act (1992: 1685) on the Protection of Circuit Patterns for Semiconductor Products, the Plant Processing Act (1997: 306) or trademark law (2010: 1877).

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There is no specific legal framework catering to libraries, museums and archives. The only rule that specifically addresses these institutions is laid down in the Swedish PSI Act and stipulates that “archives, libraries and museums may grant an exclusive right in the digitisation of cultural resources. If the exclusive right exceeds ten years, it shall be reviewed in the eleventh year and thereafter every seventh year. At the latest, by the end of the exclusive right, the person granted the right shall give the Authority a free copy of the digitised cultural resources with the right to freely utilise and distribute the material.”943 The Swedish National Archives have set up http://www.digisam.se where guidance for the libraries, museums and archives is given. The idea under the guidance is that their documents should be made available for re-use as any other public digital document. However, these institutions also make use of the portal www.oppnadata.se (directory).

943 Section 10.

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The Swedish PSI Act states that fees may not exceed the total costs of collecting, preparing, reproducing and distributing the documents, including a reasonable return on investment.944 It thus establishes a fee ceiling, but does not in itself give an authority the right to charge a fee. Instead, the general regulation regarding what fees the public authorities can charge stipulates that fees representing “full kostnadstäckning” (total costs) can be charged.945 According to a report from the Swedish government, that should include also a “reasonable rate of return” (applicable also for the CHIs).946 The specific authority in charge of the fee regulation proposes in the report that the authorities referred to in the second paragraph of section 7 of the Swedish PSI Act (i.e. some authorities are, according to their specific rules and instructions from the government, allowed to collect fees) are bound by the fee ceiling stipulated in the Swedish PSI Act. However, no guidance is given on how the concept “reasonable rate of return” should be applied.

944 Article 7. 945 Avgiftsförordning (SFS 1992:191), section 5. 946 https://www.esv.se/contentassets/f37a6bd38d7341b4b66b139033635485/2015-63-avgiftsforordningen-och-psi-lagen.pdf.

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exclusive arrangements exist in your country)? Is there an obligation to publish? Is there a national register? How is the making transparent and public of such arrangements controlled, and by whom? Does national law (or guidance) provide any clarity regarding what “reviewing” the duration of exclusivity (under Article 11(2a)) actually entails in practice? According to section 10 of the Swedish PSI Act, “an authority may not grant any exclusive right to re-use documents except when necessary to provide a service of general interest. Such an exclusive right may be granted for a maximum of three years at a time. In addition, archives, libraries and museums may grant an exclusive right in the digitisation of cultural resources. If the exclusive right exceeds ten years, it shall be reviewed in the eleventh year and thereafter every seventh year. By the end of the exclusive right, the person granted the right shall give the Authority a free copy of the digitised cultural resources with the right to freely utilise and distribute the material. If an authority grants such exclusive right, it shall publish information about this.” Although an exclusive rights should thus be made public by the authority, the preparatory works do not state how this should be done. A suggestion was made to have the Swedish Competition Authority acting as a supervision body. However, that idea was scraped by the government. Therefore, there exists no supervision nor control, and there is no national register. The preparatory works do stipulate that the reviewing of exclusive rights (in Swedish “reassessing”) should include technical, economic and administrative considerations. The timing of the review / reassessment should be calculated from the date of entry into force of the agreement.

Q16. Regarding the conditions for re-use, does national law (or case law or guidance) provide any clarity in respect to the following terms:

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“where possible and appropriate” (Art 5(1)) There exist no national “hard” rules on this. However, the website http://vidareutnyttjande.se/beskriv-din-forteckning-och- datamangder-i-dcat-ap/ states that in order for the agencies’ data to be visible in the national data portal www.oppnadata.se, the agency needs to structure the data in a file "catalogue" with specific codes recommended by the EU Commission in a so-called "DCAT-AP format". There a services available on this site to describe data in DCAT AP format. Network-based tools to convert data sets into an "HTTP API" and describe them in DCAT AP format also exist (e.g. see thedatatank.com which is an open source tool). “disproportionate effort” (Art 5(2)) Article 5(2) and 5(3) of the PSI Directive were not transposed. Section 11 of the Swedish PSI Act only stipulates that information be available in an electronic format. Transposition is missing of the following conditions for documents:  Any pre-existing format  Open and machine-readable format, along with metadata  Open standards Section 11 of the Swedish PSI Act states that the National Archives are competent to publish a list of the types of documents that can usually be supplied electronically. According to the Archive Ordinance, the National Archives may, for the State authorities and bodies referred to in the Annex to the Public Access to Information and Secrecy Act

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(2009:400), issue more detailed regulations on the content and drafting of the list to be published.947 The National Archives have not yet produced any detailed regulations, although they have conducted a study into issuing such detailed regulations.948 The report on this study, however, only stipulates suggestions (e.g. in reference what catalogue to use) and does not contain “hard” rules regarding when and what to publish or update, and where.

(y) published online in their original, unmodified form to ensure Apart from section 11 of the Swedish PSI Act (see below), there are no timely release real requirements in this regard. (z) published and updated frequently at the highest possible level of granularity to ensure completeness and accuracy Section 11 (aa)published and maintained at a stable location, preferably on “An authority shall disclose charges, including the basis for the highest organisational level within the administration, to

947 Arkivförordningen (SFS 1991:446), Section 15. 948 https://oppnadata.se/wp-content/uploads/2017/06/Riksarkivets_forstudie_om_PSI.pdf.

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ensure easy access and long-term availability calculation, and other conditions for re-utilisation. (bb)published in machine-readable and open formats (CSV, JSON, An authority shall publish a list of types of documents that can usually XML, RDF, etc.) to enhance accessibility be provided electronically for re-use and associated information. [This (cc) described in rich metadata formats and classified according to is the task of the National Archives – see above.] standard vocabularies (DCAT, EURO VOC, ADMS, etc.) to facilitate searching and interoperability The information referred to in the first and second paragraphs may be (dd)accessible as data dumps (massive outputs of data) as well as provided electronically and without charge.” through application programming inter faces (APIs) to With regard to the second paragraph, associated information means facilitate automatic processing information that is of real significance to anyone wishing to re-use (ee)accompanied by explanatory documents on the metadata and documents. This may include, according to the preparatory work of controlled vocabularies used, to promote the interoperability the Swedish PSI Act, for example, the names of the documents, a brief of databases description of the information resource, latest update, technical (ff) subject to regular feedback from re-users (public format, information about fees and other possible terms, known consultations, comments box, blogs, automated reporting, restrictions and any particular contact person for the information etc.) to maintain quality over time and promote public resource.949 involvement In order for the data to be visible in the national data portal oppnadata.se, they also need to structure the data in a file “catalog” with specific codes recommended by the EU Commission in a so- called "DCAT-AP format. There are recommendations in reference to machine-readable and open formats on öppnadata.se.950 Guidance given on the website / portal öppnadata.se indicates that some

949 https://oppnadata.se/2-ta-fram-en-forteckning-over-datan-som-din-myndighet-tillhandahaller/. 950 https://oppnadata.se/pa-vilket-satt-ska-informationen-finnas-tillganglig/.

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information which shall be provided is mandatory: the names of the documents, a brief description of the information resource, when created (latest update is only recommended information), name of the authority, technical format, information about fees and other possible terms, known restrictions and any particular contact person for the current information resource.

The National Archives were recently commissioned by the government to promote government authorities/agencies' efforts to make data available for re-use. From 1 July 2016 onwards, the National Archives have managed and developed the web site www.oppnadata.se (as well as www.vidareyttnyttjande.se). The portal, www.oppnadata.se, works as a directory, meaning it directs users to data point sources held by the data owners (the portal is not a data depot). The goal is that the portal should be easy to use, have clear licenses and conditions, support data retrieval and enable sharing of resources and solutions. One can download metadata on all data amounts on www.oppnadata.se with DCAT-AP in RDF. One can also access data sets metadata via the CKAN API. Currently there are 531 datasets on www.oppnadata.se (27 November 2017).

Q19. Has your Member State introduced rules on the method for calculating charges in response to the 2013 amendment, or has the Member State retained pre-existing rules?

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The legal basis for charging fees can vary considerably and may be found in specific acts or government letters. The Fee Regulation and the PSI Act may both contain rules that the authority need to abide by. The Swedish PSI Act states that fees may not exceed the total costs of collecting, preparing, reproducing and distributing the documents, including a reasonable return on investment.951 It thus establishes a fee ceiling, but does not in itself give an authority the right to charge a fee. Instead, the general regulation regarding what fees the public authorities can charge stipulates that fees representing “full kostnadstäckning” (total costs) can be charged.952 According to a report from the Swedish government, that should include also a “reasonable rate of return” (applicable also for the CHIs).953 The specific authority in charge of the fee regulation proposes in the report that the authorities referred to in the second paragraph of section 7 of the Swedish PSI Act (i.e. some authorities are, according to their specific rules and instructions from the government, allowed to collect fees) are bound by the fee ceiling stipulated in the Swedish PSI Act. Authorities should avoid charging fees when they provide data in electronic form and when they allow others to re-use such information. This is especially true when information is easy to obtain and distribute. However, State authorities can, to a certain extent, charge fees when they electronically publish data and allow re-use.954 If the government has not decided otherwise, the Authority may in such cases decide the amount of the fees - up to full cost coverage, which may include reasonable rate of return if this is allowed under the Fee Regulation and the

951 Article 7. 952 Avgiftsförordning (SFS 1992:191), section 5. 953 https://www.esv.se/contentassets/f37a6bd38d7341b4b66b139033635485/2015-63-avgiftsforordningen-och-psi-lagen.pdf. 954 Section 4, paragraph 8 of the Swedish general regulation regarding what fees the public authorities can charge (Avgiftsförordning (SFS 1992:191).

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Swedish PSI Act. However, the Parliament has decided on a uniform principle for the pricing of data published by authorities in electronic form.955 According to this principle, fees levied on the Fee Regulation may not exceed the cost of obtaining and distributing information. It includes all costs of handling the order (i.e. wage costs for programming, processing and confidentiality as well as material and distribution costs). If the information is already used as part of the agency's basic operations, the fee should not cover the “business's share” of the costs. Whether this principle is guiding now when the Swedish PSI Act has been implemented may be doubtful, however, it is mentioned and discuss in various guidance papers.956 According to the web portal oppendata.se, it is mainly the following costs that may be taken into account when setting a price for publishing information in electronic form (according to the Swedish Financial Supervisory Authority): 1) Cost for the time it takes to complete the order - staff costs with a charge to cover a fair share of common costs for e.g. management, staff function and premises; 2) Direct material costs; 3) Distribution or communication costs; 4) Charge for debit. Once the authority has identified the costs that the fee will cover, it is time to consider an appropriate price structure. This price structure should be simple, uniform and easy to understand for the user. Anyone who wishes to access the authority's information resources must be

955 Proportions 1997/98: 136, bet 1997/98: KU 31, rsk 1997/98: 294. 956 E.g. https://oppnadata.se/juridik-och-rekommendationer/utlamnande-i-elektronisk-form-pa-begaran-andrahandsalternativet/sarskilt-om-avgifter/.

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informed in advance, or be able to figure out what he or she will be paying. In some cases, more than one customer is likely to request the information. In that case, one-off costs (e.g. for programming) may be divided by the expected number of clients. The fees will be higher if the agency expects a few customers to share the costs. This in turn means that the level of fees may deter a number of interested buyers.957 The price can be calculated by multiplying the agency's hourly cost or equivalent with the number of hours worked on the order, possibly with additional costs for e.g. materials and distribution. If certain information is demanded on a regular basis, consideration should be given to charging a fixed fee that is easy to administer and can be perceived as clear by the customer. A fixed price is based on an average cost of obtaining and distributing the information. Such a cost can be calculated by taking the total cost of meeting the demand for a certain amount of information and dividing it with an expected volume.958 The charges may not be discriminatory for comparable categories of re-use.959 However, an authority may charge different rates for different categories of re-use.960 Still, if the costs for the actual disclosure are the same, the authority should charge the same fee regardless of the information concerned.961 An authority should be able to justify how it has interpreted "comparable categories of re-use". In cases where authorities sell both basic information and processed information, it is important to have the same pricing principles, both when transferring information within the Authority and when selling the same information to external re-users.962 Sales under the Fee Regulation are normally subject to VAT. However, VAT shall not be deducted if the goods or services are exempt under the

957 https://oppnadata.se/juridik-och-rekommendationer/utlamnande-i-elektronisk-form-pa-begaran-andrahandsalternativet/sarskilt-om-avgifter/. 958 See also the Swedish National Financial Management Authority's publication. (ESV 2001: 11). 959 Section 8 of the PSI Act. 960 Section 8 of the PSI Act. 961 According to the Swedish Financial Supervisory Authority. 962 Section 9 of the PSI Act.

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VAT Act (1994: 200) or in the case of sales between government agencies. Usually it is the authority manager who decides on a price list or the equivalent. Based on e.g. the price list, it is then calculated how much the buyer will pay in the case at hand. It is important that the authority clearly state what information is available without charge and for what information fees are charged. This should be done in the list of information resources that the authority should keep available on its website. It is not necessary to specify the exact amounts, but the general pricing principles that must be stated. Upon request, the authority must state the basis for the calculation of fees.963 There is another regulatory framework in place for municipalities and county councils – their possibility of charging fees is stated in the Municipal Act (1991: 900) and according to it, neither municipalities nor county councils have a general obligation to charge fees. (Note that the Swedish PSI Act does also apply to municipalities and county councils.) If a municipality decides to charge, their fees may not exceed the costs. The expenses made must be determined per delivery, which means that the fee for a single withdrawal can still exceed the cost of a delivery. Both direct and indirect costs may be included in the cost base. In cases a municipality's own agency uses the information services of a particular activity, the agency should be internally charged for this to be able to calculate the cost accurately. For example, when the technical administration in a municipality can re-use information from the school administration, the school administration should charge the technical administration in order to calculate a correct price for re-users. Finally, Chapter 4, Section 14 of the Ordinance (2010:1770) on Spatial Information stipulates that if a public authority is allowed to charge other public authorities for services referred for spatial information, the charges may not exceed the cost of reproducing, supplying or disseminating the information or supplying the services, unless otherwise provided for If a public authority is obliged to charge fees in order to cover a substantial part of the costs of an activity, the total income generated may not exceed the cost of collecting, producing, reproducing or disseminating the information or supplying the services, together with a reasonable return on investment. These rules do not apply in the case of charges collected from public authorities for the re-use of documents if it is clear that the documents will be used in the course of competitive activities. Provisions on such charges and on charges collected from individuals have been laid down in Section 7 of the Act (2010:566) on the re-use of public sector documents.

963 Section 11, second paragraph, PSI Act.

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Q20. Does national law (or guidance) clarify the scope of the charging exception set out in Article 6(2)(a) of the PSI Directive?

Some government agencies will charge fees according to their government instructions and regulatory letters, which might give leeway. For example, Lantmäteriet (Geo) and Bolagsverket (Company register) have special rules on fees collection, and the fees are a significant part of these authorities' funding.

Q21. How does national law or administrative practice clarify the scope and application of the exception set out in Article 6(2)(b)? (i.e. to which entities it applies and how).

See answer to Q19 above. Already the preparatory work to the new PSI Act discussed the authorities, e.g. Lantmäteriet that needed to charge fees and to create coherence between the PSI Act and the general fee regulation and some changes were made to the Fee Regulation including the accompanying guidelines. The general regulation regarding what fees the public authorities can charge stipulates that fees representing “full kostnadstäckning” (total costs) can be charged.964 According to a report from the Swedish government, that should include also a “reasonable rate of return” (applicable also for the CHIs).965

964 Avgiftsförordning (SFS 1992:191), section 5.

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The specific authority in charge of the fee regulation proposes in the report that the authorities referred to in the second paragraph of section 7 of the Swedish PSI Act (i.e. some authorities are, according to their specific rules and instructions from the government, allowed to collect fees) are bound by the fee ceiling stipulated in the Swedish PSI Act.

Q22. Has your Member State introduced objective, transparent and verifiable criteria for charging (article 6 (3))

Beyond the rules set out under question 19, each public authority has their own calculations.

Generally, there are grounds for refusal (1) the data is covered by the Public and Privacy Act; (2) the data contains personal data; (3) the data is not a “public document” yet, since it is still a working documents; and (4) the data is covered by third party copyright. Certain information may not be made available on the Internet, and restrictions in this regarding may be found in particular in the Public and Privacy Act, Personal Data Act and the Copyright Act.

965 https://www.esv.se/contentassets/f37a6bd38d7341b4b66b139033635485/2015-63-avgiftsforordningen-och-psi-lagen.pdf.

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Privacy rules should limit the spread of sensitive information, and data that is confidential - according to the Public and Privacy Act - cannot be made available for re-use. However, it may be unclear whether privacy provisions restrict availability and, if so, how. Nonetheless, it is clear that personal data may only be disclosed in electronic form if permitted by Personal Data Act. Moreover, the authorities that receive a request for disclosure of personal data should also pay attention to the provision in Chapter 21, Section 7 of the Public and Privacy Act. This Section states that privacy applies to personal data if you can assume that the recipient will treat them in a way that violates the Personal Data Act. It should also be stressed that the Public and Privacy Act is wide, including rules regarding confidentiality in reference to several different scenarios (e.g. national security, foreign relations, trade and business secrets, patient information, information given to religious leaders). The Swedish Copyright Act mirrors copyright protection in other Member States.

Section 15 of the Swedish PSI Act stipulates: “Decisions by a government authority other than the Government, the Supreme Court, the Supreme Administrative Court or the Ombudsman of the Parliament may in an individual case under this Act be appealed to the General Administrative Court. The decision of an administrative court in a case initiated there, as well as a decision by a general court or the general court of appeal, is appealed against in the Administrative Court of Appeal. A decision of a chamber of court in a case initiated in the

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Administrative Court of Appeal is appealed to the Supreme Administrative Court. Section 16 of the Act states that “if a decision of a body which is regarded as equivalent to an authority, the body shall be the individual's counterparty after the documents in the case have been handed over to the court.” In practice, there exist no time limits.

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The PSI Act also applies to the re-use of documents provided by the bodies listed in the Annex to the Public and Privacy Act (2009:400), which contain government public owned companies (if the documents are included in the activities specified in the Annex) as well as documents provided by public limited companies, commercial companies, economic associations and foundations where municipalities or county councils exercise judicial influence. These bodies shall be equated with the authorities in the application of the Act. According to the rules for accessing public documents under the Swedish Constitution, documents that are not encompassed by the PSI Act may also be shared and hence re-used, if these documents are not covered by the the Public Access to Information and Secrecy Act. So, for example, if the data held by an entity fulfils the requirements of being an “official document” and the other requirements laid down in the Freedom of the Press Act, and the data is not deemed confidential under the Public Access to Information and Secrecy Act,966 a re-user may access and re-use this data, even though the PSI Act is not applicable.

Q27. In relation to “bodies governed by public law”, is there any lack of clarity in the Member State about which bodies fall into this definition?

No.

966 Offentlighets- och sekretesslagen 2009:400.

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No issues identified in carrying out this research.

782

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European Commission

Study to support the review of Directive 2003/98/EC on the re- use of public sector information Luxembourg, Publications Office of the European Union

2018 – 784 pages

ISBN number 978-92-79-83169-0 doi: 10.2759/373622

784

- 428

doi: 10.2759/373622 ISBN number 978-92-79-83169-0