Open Data in the EU

1.1. Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of PSI

In July 2013 Directive 2013/37/EU amended Directive 2003/98/EC, to encourage the Member States to make as much material held by public sector bodies available for re-use as possible. The change was made necessary by the exponential increase in data and constant evolution of technologies for data analysis, exploitation and processing. 

Furthermore, due to the ambitious approaches of some Member States in implementing the 2003 Directive, which exceeded the minimum level set by the latter, minimum harmonisation was necessary to determine the type of public data available for re-use on the internal market of information, to prevent different rules adopted by different Member States from hindering the cross-border supply of products and services and to allow comparable sets of public data to be re-used to create panEuropean applications based on such data. 

The most significant changes were: 

• the expansion of the scope of the Directive to include libraries, archives, museums and university libraries (which hold a considerable amount of valuable PSI resources, particularly since digitisation projects have multiplied the amount of digital public domain material), albeit in a way that limits the possible financial effects and does not impose a significant administrative burden on these institutions;
• the obligation to allow the re-use for commercial and non-commercial purposes of generally accessible public data that are not explicitly covered by one of the exceptions;  

• data should be made available in machine-readable formats where possible (recital 21);  

• a default charging rule limited to the marginal cost of reproduction, provision and dissemination of the information. This provision does not apply to 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 (recital 22; article 6); 

• the obligation for public sector bodies to be more transparent regarding the charging rules and conditions they apply; 

• in relation to any re-use that is made of the document, public sector bodies may impose conditions, where appropriate through a licence, such as acknowledgment of source and of whether the re-user has modified the document in any way (recital 26);

• the means of redress should include the possibility of review by an impartial review body which should be organised by the constitutional and legal systems of the Member States and should not prejudge any means of redress otherwise available to applicants for re-use. It should, however, be distinct from the Member State mechanism laying down the criteria for charging above marginal costs. The means of redress should include the possibility of reviewing adverse decisions but also decisions which, although permitting re-use, could still affect applicants on other grounds, notably by the charging rules applied. The review process should be swift, due to the needs of a rapidly changing market (recital 28); 

• prohibition on cross-subsidies: if public sector bodies re-use their documents to offer added value information services in competition with other re-users, equal charges and other conditions must apply to them all. Prohibition on exclusive arrangements: public sector bodies may not enter into exclusive agreements with individual re-users, excluding others. Two exceptions apply: exclusive rights may be authorised in exceptional circumstances if they are necessary to provide services in the public interest; or in the context of digitisation of cultural resouces.