EU policy/PSI Directive Consultation

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PSI Directive Consultation

 

The European Commission has launched a survey regarding a possible reform of the Public Sector Information Directive. This is a page to providing an answering guide for third-parties and a place where we work on Wikimedia's answers.

Purpose of Survey

The Commission is launching a public consultation in view of reviewing the directive on the re-use of public sector information (PSI Directive). As foreseen in the May 2017 mid-term Review of the Digital Single Market strategy, and in order to fulfill the goals of the strategy in the field of the data economy, the Commission is preparing an initiative on accessibility and re-use of public and publicly funded data, and is at the same time further exploring the issue of privately held data which are of public interest.

Important deadlines

The consultation will remain open until 12 December.

Previous EU positioning by Wikimedia

• European Commission Illegal Content Consultation
• Copyright Consultation
• Position Paper on EU Copyright
• Platforms Consultation
• FKAGEU Statement of Intent
• Position Paper on Copyright Reform Proposal
• Illegal Content Consultation

Who should answer this consultation?

Everyone, who has ever used public information, who wants to have more access to public information or who believes that public information should be free and open.

Answering Guide

PART I: EVALUATION

The PSI Directive was adopted in 2003 and subsequently amended by the Directive 2013/37/EU. The purpose of this part of the questionnaire is to help the Commission assess whether the Directive in its current shape has met the needs of citizens and business and to assist the Commission in making the legal framework simpler and less costly to apply.

Do you want to answer this section?

Yes No

EFFECTIVENESS OF THE PSI DIRECTIVE

The PSI Directive provides a common legal framework for a European market for government-held data (public sector information). The main objective of the Directive is to remove barriers that hinder the re-use of public sector information throughout the European Union. It harmonises the rules and practices relating to the exploitation of such information to stimulate the creation of new data-based services and products.

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

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

More data held by public sector bodies, including cultural heritage institutions, has become available for re-use.
slightly agree

Public sector information is increasingly becoming a source of innovative services and products.
strongly agree

Public sector information circulates freely across the EU and cross-border applications based on such information are easy to implement.
slightly agree

PSI has become more affordable, including for Start-ups and SMEs.
slightly agree

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

Open field:
While there has been significant improvement in the access and re-usability of public sector information, the non-mandatory nature of the PSI Directive makes it more of a recommendation. It is unclear how much the Directive actually contributed to it. It also leads to a situation where the progress made is much less than originally hoped for.

EFFICIENCY OF THE PSI DIRECTIVE

The Directive aims to generate socio-economic benefits by limiting barriers to an open re-use of government data. At the same time, the implementation of the Directive may incur compliance costs on the side of the public sector bodies.

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

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

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

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

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

Open field:
While many PSI bodies comply with the Directive's intentions, many others do not. They try to prevent re-use of information. This often leads to lengthy appeals and negotiations, which remain in many cases unsolved (Sofia public transport data, Budapest monuments data, Plovdiv - various datasets, Belgium regional public transport data).

RELEVANCE OF THE PSI DIRECTIVE

At the time when the PSI Directive was adopted, different national rules and practices were limiting the supply of PSI available for re-use which slowed down the creation of a common market for public sector information, significantly harming data-based innovation.

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

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

Supply of PSI into the EU single market.
slightly agree

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

Fair market access (non- discrimination) of all re-users.
slightly agree

Transparency and accountability of public sector bodies.
slightly agree

Open field:
While all these points are still relevant and the PSI Directive makes some timid steps towards solving them, the non-mandatory nature of the legislation and it's "implementation guidelines" lead to a situation where it is effectively being ignored or sidestepped by public sector bodies.

• Q4: A wide variety of licencing conditions with varying degrees of limitations for access and use was identified as an obstacle to PSI re-use in the previous evaluation of the Directive. According to your experience, does this variety of different licenses and re-use conditions still continue to be a

barrier to an efficient and effective re-use of public sector information?

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]
strongly agree

Open field:
Yes, license poliferation remains an issue. We would strongly recommend for a standard or benchmark licensed to be used and compatibility with this standard license to be promoted. The Guidelines on recommended standard licences, datasets and charging for the reuse of documents, for instance, strongly recommend the CC0 public domain dedication. We fully support this approach and would like to see it repeated in the actual Directive.

COHERENCE OF THE PSI DIRECTIVE

In addition to the PSI Directive, access to and the re-use of public sector information can be affected by rules stemming from other EU and national legal acts.

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

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

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).
slightly agree

The Public Access to Environmental Information (PAEI) 2003/4/EC Directive.
slightly agree

Legislation on the protection of personal data ( Directive 95/46/EC and the GDPR ).
I don't know

Directive 96/9/EC (Database Directive).
strongly disagree

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

Open field:
There seems little contradiction between the GDPR and the PSI Directive. The PSI Directive generally is well aligned with other pieces of legislation trying to render public information more accessible. It is partially contradictory with the Database Directive, as this legislation tries to limit and control the re-use of information. By imposing another layer of protection on some public information it gives many public sector bodies an excuse not to open up their information. It also makes license compatibility an issue.

EU ADDED VALUE:

Prior to the adoption of the PSI Directive, rules and practices regarding the re-use of PSI varied significantly across the EU Member States. One of the aims of the EU intervention was to achieve minimum harmonisation, thereby reducing disparities between the Member States.

• Q6: Based on your experience, do you agree that EU-level intervention has been beneficial for the

extent to which PSI is re-used across the EU? In particular:

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

The PSI Directive has played a role in encouraging the national authorities to open up more public sector data.
'partly agree

The Directive has facilitated access to public sector information from countries other than my own.
partly agree

The Directive is conducive to the creation of an EU-wide market for products and services based on public sector information.
partly agree

Open field:
While the Directive has improved the situation on all these accounts it's non-mandatory nature returns only limited results. The best results are achieved by and from the public sector bodies which would have worked on opening up their information with or without legislation.

SIMPLIFICATION

One of the objectives of the current evaluation is to ensure that the rules in force are sufficiently clear and do not lead to legal uncertainty or undue administrative costs linked to their implementation.

• Q7: In the light of the considerations above, what would be your assessment of the PSI Directive?

Directive are easy to understand and implement by the public sector bodies and re-users alike.
strongly disagree

Some provisions of the Directive could be further simplified or made clearer (if so, please mention which ones in the open field below).
strongly agree

Open field:
The Commission already knows that the Directive is not as clear as it should be. The creation of the Guidelines on recommended standard licences, datasets and charging for the reuse of documents was necessary because of many public sector bodies demanding clarifications and guidance. Making sure the points made in the guidelines make it into the actual legislation would be a major step forward.

PART II: REVIEW

The Directive contains a review clause according to which the Commission should evaluate its implementation and communicate the results of this exercise, along with possible proposals for amendments. This part of the questionnaire aims to identify areas which would benefit from EU intervention of legislative or non-legislative nature.

• Do you want to answer this section?

Yes No

PRACTICAL ARRANGEMENTS FOR ACCESS AND SEARCH OF DOCUMENTS

The Directive aims to facilitate search for documents held by public sector bodies and to make data easier to process by computers. To that end it recommends publishing data and metadata in machine-readable, open formats (Art. 5). The Directive refers also to dynamic data (e.g. data from sensors or satellites) in its recital 12, but contains no obligation for public sector bodies to make this data available in a timely manner.

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

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

Public sector bodies already make available dynamic data (e. g. sensor, satellite data) for re- use in a timely and easy manner.
slightly agree

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

Public sector bodies should make available data they hold in a mandatory open standard.
strongly agree

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

Open field:

CHARGING RULES

The Directive contains rules that prevent public bodies from setting excessive or arbitrary charges on the re-use of documents. Since the revision of the Directive in 2013, the default rule for charging for the re-use of public sector information is that of marginal cost of dissemination (Art. 6.1). Some exceptions to this rule are foreseen (e.g. when public bodies are required to generate revenue to cover substantial part of their operating costs). The Directive specifically mentions the rules on charging as one of the areas that may require legislative change in the present review.

• Q10: To which extent would you agree with the following statements?

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

Current wording of Article 6 of the Directive is good: no changes are needed.
slightly disagree

Exceptions to Article 6.1 should be abolished: marginal cost of dissemination should become the upper limit for charging by all public sector bodies, save for cultural heritage institutions.
strongly agree

The circumstances under which exceptions to Art. 6.1 are allowed should be more narrowly defined.
strongly agree

Other changes need to be made to the wording (detail in open field).
strongly agree

Open field:
While the current wording already does a good job at keeping charges low, the exceptions are being abused, especially when sensitive data is being held back for political or valuable data for economic reasons. Marginal cost of dissemination should be the upper limit to charges.

DATA HELD BY EDUCATIONAL AND RESEARCH ESTABLISHMENTS/SCIENTIFIC INFORMATION

With the exception of documents held by university libraries, documents held by educational and research establishments, schools and universities are currently exempt from the scope of application of the PSI Directive. Relevant documents fall broadly into two categories: a) documents of administrative nature such as budgets, enrolment of students, human resources and b) documents that constitute the scientific output of a research establishment or university.

• Q11: To which extent would you agree with the following statements?

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

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

Educational and research establishments, schools and universities should not be obliged to allow the re-use of their documents of administrative nature. However, when they choose to do so, then they have to apply the same conditions to all re-users (prohibition of discrimination and of exclusive arrangements) and be transparent.
strongly disagree

The current legal framework is good. No changes need to be made.
strongly disagree

Other (please, explain in the open field).

• Open Field

There seems to be no logical reason to exempt public or publicly funded education and research establishments from the scope of the PSI Directive.

Open access to scientific publications and research data are considered to be an important enabler of innovation and scientific progress. The Commission Recommendation of 17 July 2012 on access to and preservation of scientific information recommends that Member States, research funding organisations and academic institutions put policies in place that ensure that scientific research results (publications and research data) are in principle available on an open access basis (free of charge online access and unrestricted re-usability).

• Q12a: Do you agree that scientific research results (publications and research data) resulting from

public funding should in principle be open access (free of charge online access and unrestricted re- usability)?

Yes No

Open field:
It is important to make sure access and re-usability are well defined, as for instance in the Open Definition.

• 12b: To which extent would you agree with the following statements?

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

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

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

Open field:
A harmonised European policy would help with compatibility and be a strong incentive to open up a huge amount of information.

DATA HELD BY ENTITIES PROVIDING SERVICES OF GENERAL INTEREST

Services of general interest (e.g. public transport, postal services, healthcare) can be provided either directly by the state or by publicly controlled companies or on behalf of public authorities by independent economic operators (e.g. under a concession contract). The data generated whilst providing services of general interest either by publicly owned companies or by independent economic operators on the basis of contracts are often exempt from the provisions of the PSI Directive. This may create an imbalance across the Member States, given that in some of them similar tasks are carried out by public sector organisations directly. As a consequence, the creation of pan- European information products based on this type of data might become difficult.

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

[strongly agree, slightly agree, slightly disagree, strongly disagree, I don't know.]

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

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

Data produced by utilities (e.g. in the energy, waste and water sectors) is currently available for re-use?
strongly disagree

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

Open field:
As long as the public is funding the task, the availability for data for re-use by anyone should be a priority. Otherwise only large enterprises can take upon the costly time and effort to get access and rights on the information and can develop services, which is mostly to the detriment of European start-ups.

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

Become available for every potentially interested re-user. Become available only to the contracting authority (e.g. for better informed procurement on the basis of market information). Become available for other purposes (please explain below). I don't know.

Open field:
If we want to foster innovation and help European start-ups, we need to allow re-use for everyone.

RELATIONSHIP WITH THE DATABASE DIRECTIVE

As a rule, the provisions of the PSI Directive do not affect intellectual property rights (IPRs) including sui generis rights (recital 22), while indicating that rights held by public sector bodies should be exercised in line with the provisions of the PSI Directive. Despite this, some public bodies have been tempted to invoke their sui generis right under the Directive 96/9/EC (Database Directive) to prevent the re-use of the content of their databases.

• Q15a: Have you experienced situations where public sector bodies invoked their database rights to prevent the re-use of public sector information?

Yes No

Open field:
Yes, most prominently in the area of transport data and public heritage sites databases.

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

Yes No I don't know

Open field:
This would definitely be a good move, however, it would not solve the majority of issues with the Database Directive. In order to really align the Database Directive with the aims of the PSI Directive, we would need to scrap the sui generis right.

NATIONAL ACCESS REGIMES

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

• Q16: In this light, which of the following statements would you support (more than one option is possible)?

The link between access and re-use is clear and useful. It prevents the release of documents the re-use of which could harm the interests of the state, individuals or third parties. National rules on access to documents (e.g. time-limits for obtaining a responses, administrative charges, lack of appeal options) are stricter than the rules foreseen by the PSI Directive and make the re-use of documents more difficult. The fact that access regimes differ from one Member State to another slows down the emergence of EU-wide services and products based on public sector information. The link between access and re-use is not clear. I find that many documents access to which is currently restricted should be available for re-use. Other.

Open field:
If a document can be publicly accessible, it should also be re-usable. If a document can harm national security or the interests of the state, it will not be released. On the other hand, some public bodies try to restrict access to public information by providing individuals with requested documents, but threatening that the individual is not allowed to share or re-use them.

BARRIERS TO MAKING DATA AVAILABLE

• Q17a: According to your experience, what is the most common reason for not making data available cited by public sector bodies in general?

Making the data available would be incompatible with personal data protection rules and obligations. Making the data available would be incompatible with data security rules and obligations. The data could reveal third parties' proprietary or confidential information (e.g. intellectual property, trade secrets). The data could reveal otherwise confidential information. Making data available would be too costly. Risk of misuse of the data and of negative reputational impact. We do not hold the data requested. Other.

Please, specify:
Many public sector bodies we deal with have said that there is no political decision to make the data available and thus they can't move on their own. In reality the discussions are with specific departments, units or agencies who are unsure about the political will behind the request to open up information.

• Q17b: According to your experience, what is the most common reason for not making data available cited by operators under a public service contractual arrangement (e.g. public passenger transport service) or operating a public concession?

Making the data available would be incompatible with personal data protection rules and obligations. Making the data available would be incompatible with data security rules and obligations. The data could reveal third parties' proprietary or confidential information (e.g. intellectual property, trade secrets). The data could reveal otherwise my own proprietary or confidential information. Making the data available is not a task specified in the contractual arrangement and is too costly. Risk of misuse/misappropriation and related reputational impact. We do not hold the data requested. Other.

Please, specify:
A wish to remain in control. The claim that the information belongs to the operator and should not just be freely used by other entities.

• Q17c: After having gained access to data, which barriers to the re-use of data have you encountered (more than one option is possible)?

Unclear or inconsistent terms and conditions for the reuse of the data. Lack of machine-readable/standardised licenses (e.g. Creative Commons). Lack of machine-to-machine interfaces (APIs) to build new products and services on the data. Poor quality metadata (e.g. lack of information on content, quality and context of the data). Lack of information on data management (e.g. unknown frequency of updates, change management, persistency of identifiers, long term availability of the dataset, backward compatibility of new versions etc.). Other.

Please, specify:
The sue of non-compatible licenses and the attempt to restrict re-use are the two most commons hurdles we deal with.

• Q18: What safeguards (if any) could be implemented to make personal data protection less of an issue in the context of re-use of public sector information?

1000 character(s) maximum
Personal data should simply not be publicly accessible and thus also not re-usable. This is already the case.

PART III: ACCESS BY PUBLIC SECTOR BODIES TO DATA OF PUBLIC INTEREST COMING FROM PRIVATE SECTOR ENTITIES

Note: The questions below do not concern the retention of data coming from private sector entities for purposes of criminal law enforcement or other purposes entailing decisions that directly and negatively affect individuals (e.g. immigration or taxation decisions). In the current context of rapid development of communication and information technologies, public institutions are increasingly becoming not only the producers but also major consumers of data which they use to provide better services to citizens, as well as to other government organisations. For instance, cities may wish to access and re-use data from multiple sources such as sensor data to help improve urban mobility, while statistical institutes increasingly rely on access to new data sources to provide faster information to citizens, businesses and politicians, such as on prices for goods and services.

Do you want to answer this section?

Yes No

• Q19a: In light of the above, do you agree that access to data coming from private sector entities and its use by public authorities for reasons of public interest should be allowed?

Yes No

• Q19b: Which of the below conditions should apply for such access to be authorised (more than one option is possible)?

Establishment of a separate agreement between a private and public entity to specify obligations and rights in addition to the applicable legislation. Use of the data is clearly defined and limited to the defined purposes. Access to data is limited in time. The legitimate commercial interests of private entities are safeguarded. The security of data can be ensured. Confidentiality of the data is safeguarded. Trade secrets or other intellectual property are not disclosed. Costs for enabling access to these data are covered by the public authorities. Private entities can negotiate a price exceeding pure cost recovery. Burden on private entities is distributed in a fair manner. The results can be used to improve offers or services of data holder. The resulting information is made openly re-usable. Other.

Please, specify:

• Q20a: What would be the possible motivations or incentives for sharing data of public interest with public authorities (more than one option possible)?

None. Enrich offer of services by private entities. Increase quality of services of private entities. Foster data economy in specific markets. Use of defined and certified standards. Receive quality stamp for data products of private entities. Benchmark private with public data. Legal security on conditions of use of privately held data. Contribution to the Corporate Social Responsibility of private entities. Other.

Please, specify:

• Q20b: Which mode of data access would be most suitable for data sharing to take place (more than one option possible)?

Transfer of specific data directly between IT infrastructure of private entity and public authority? Remote access to data of private sector entities by public authority on private IT infrastructure? Remote access to data of private sector entities by public authority on separate IT infrastructure? Remote access to data of private sector entities by public authority with application of agreed algorithms for data analysis and processing? Transfer of processed and aggregated statistical data to public authority? Other.

Please, specify:

• Q21a: Would specific legal measures need to be put in place to enable data access and use by public sector bodies?

Yes No

• Q21b: If Yes, which type of legal measures to access and use of data of public interest coming from private sector entities would be the most appropriate (more than one option possible)?

General principles. Specific rights and guarantees. A formal procedure. Identification of third parties for mediation. EU wide legislations by sectors (e.g. Regulation on provision of EU-wide multimodal travel information services, Regulation on European Statistics). Other.

Please, specify:

DOCUMENT UPLOAD AND FINAL COMMENTS

Should you wish to provide additional information (e.g. a short position paper) or raise specific points not covered by the questionnaire, you can upload your additional document here. Please, note that the uploaded document will be published alongside your response to the questionnaire which is the essential input to this open public consultation. The optional document will serve only as additional background reading to better understand your position.

Wikimedia Answers

Please edit inside the survey form. Please do let us know, however, that you are participating, so we can keep track of the different team members. You can do so here or on the talk page.