The following guest post is from Katleen Janssen, researcher at the Interdisciplinary Centre for Law and ICT at Katholieke Universiteit Leuven, and member of the Open Knowledge Foundation’s Working Groups on EU Open Data and Open Government Data.

In Belgium – and I can imagine this is the case in more countries – we look at data.gov.uk with a mix of admiration and envy. The goal of the PSI directive to stimulate any re-use of public sector information is taken to heart and translated into a portal opening up large numbers of data sets for any type of use.

While in the UK and in many other EU Member States (e.g. Netherlands, Denmark, Spain), the awareness is growing that the open availability of public sector data can stimulate innovation and increase accountability, some other countries are still turning a blind eye to the opportunities that open access to public sector data can bring. A big part of the problem seems to be culture. Public bodies do not realize the value of their data for others, or they are worried that their data will be interpreted wrongly or used for wrongful purposes, putting their reputation on the line. In addition, due to lack of resources or lack of vision, some governments were satisfied with just transposing the directive in a law – to never look at it again, let alone develop an actual implementation policy or guidelines for the public bodies. Left to their own devices, some public bodies have risen to the occasion and developed a well-working re-use policy, while others have not bothered, or may simply not even be aware that there is such a concept as ‘re-use’.

As bad as I make the Member States sound, I must admit that they did not have an easy job in transposing and implementing the PSI directive, as this directive has left many difficult and unclear issues for the Member States to sort out themselves. Even the concept of re-use itself raises a lot of issues, particularly in relationship with the citizens’ right to access information under national freedom of information legislation. The PSI directive has its roots in economic considerations and was developed to support the information industry, and European Commission representatives have often emphasized its economic character, the fact remains that the definition of re-use in the PSI directive is much broader: “the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced”(article 2.4). Hence, it does not only involve commercial use, but also any other use as long as it is outside of the public task.

Considering this broad definition, it is not surprising that some of the Member States linked re-use immediately to their existing legislation on freedom of information (FOI) and decided to transpose the directive by amending their laws on access to government information. Some Member States felt that this legislation already covered all they needed to transpose the PSI directive (e.g. Sweden, Finland, Poland). Of course, access and re-use are closely related, in the sense that public sector data has to be accessible before you can re-use it, but they have a different background: access is rooted in traditions of democracy and public participation, while re-use has an economic slant and is intended to stimulate the common and internal market. These two different mindsets have only rarely been recognized by government, public bodies or appeal bodies. One of the few attempts to explain the distinction was made in 2004 by the UK Advisory Panel on Crown Copyright (which has been replaced by APPSI since then):

> Although the subject matter (public information) and the broad scope (public bodies) of these instruments are similar, the underpinning policies are quite different. The FOI Act seeks to promote greater transparency and openness in the conduct of public affairs, while the PSI Directive recognises the value, and aims to encourage the commercial exploitation, of public information. The focus of the FOI Act is enhancing the rights of individuals in a democratic society. At the heart of the PSI Directive is the smoother running of the internal market; the stimulation of the European information industry so it can compete more effectively in the global marketplace.

Due to these differences, incorporation of access and re-use into the same legislation is not a simple task, and some implementations have been criticized for trying (e.g. by Mireille van Eechoud and Marc De Vries in the Netherlands). However, at least these countries have realized that there is a link between both and they should be applauded for seeing the relationship between them. The main problem with this practice is not the incorporation into one text, but rather the incorporation into one text without the incorporation into one information policy. If no attention is paid to the coherence between different information policies, they end up being very difficult to apply, or in the worst case end up contradicting each other. An example: in France and Belgium, the freedom of information legislation contained a prohibition to use the documents that were obtained under this legislation for commercial purposes. In Belgium, this article was abolished during the implementation of the PSI directive, to ensure that commercial use would not be hindered. While this was a nice attempt to harmonize access and re-use, it actually had an opposite effect. For years, the article had been interpreted in a way that prohibited commercial use of the documents as they were, but any reworking of the data or value-adding was allowed, without any extra conditions. The introduction of the PSI legislation changed this and made such re-use also subject to the freedom of the public bodies to decide whether they allowed re-use or not. Hence, the PSI legislation actually decreased the possibilities for re-use. In addition, it limited the extent and interpretation of what you can do with information obtained under access legislation.

In my opinion, that is one of the biggest issues of the PSI legislation: where does access stop and where does re-use begin? How are public bodies supposed to know which rules they have to apply to a request for information? The example that I usually give, is journalists: during the history of freedom of information legislation (in Sweden it dates from 1766), they have been among the main users of FOI to obtain information from the government and the public sector. However, the news is also big business: newspapers and news channels have to be competitive and gain revenues. So while traditionally journalists have always obtained their information under FOI, if you want to apply the PSI rules to the letter, they would be re-using the information, possibly even for a commercial purpose. This could mean dealing with licences, fees and use conditions. However, journalists are not the only example of possible confusion between re-use and access. The development of Web 2.0 could potentially increase this confusion exponentially. Like Mayo and Steinberg said in their Power of Information Review, a lot of new and innovative services are created by citizens and organisations on their websites, blogs, fora, etc (e.g. mtraffic, Openstreetmap, Where does my money go?, Fixmystreet). These services are re-using public sector data, but before the PSI legislation, they might have already been possible under FOI legislation, due their role in increasing public participation and democratic accountability.

Initiatives like data.gov.uk, however fantastic they are, increase the grey zone between access and re-use, as their aim with releasing public sector data is not only economic growth and innovation (like the PSI directive), but also increasing accountability and transparency (what FOI legislation was originally intended for). However, the enthusiasm and acclaim with which it has been achieved shows that maybe this is the way to go: forget about dogmatic issues like the distinction between re-using PSI and accessing it under FOI, and just think in terms of making public sector data open to anyone who wants to use it. This entails having a streamlined information policy that takes into account all the possible uses that could be made of public sector data.

However, such an overarching policy may work if everything is available free of charge and with hardly any use conditions, for example under a CC-zero licence or data.gov.uk’s open licence conditions, but it may have unwelcome results in countries or public bodies that wish to maintain a more complicated licensing policy with charges for using the data. We may not like such charges and conditions, but the truth still is that some public bodies creating interesting data have to earn their own money, and will have to continue doing so unless the government sees the importance of their data and starts to fund it from the central budget. In such cases, a combined policy for access and re-use might rather lead to the public having to pay or having to sign a licence for getting the data in more occasions than under the traditional FOI legislation. Considering the fundamental character of the right to access government information, this should be avoided at all time. Any information policy that intends to do away with the distinction between FOI and re-use should start from the largest common denominator of what people can already do with the information they obtain from government, and ensure that these existing rights are maintained. This almost automatically leads to a very open data policy.

This exercise will be one for the Member States, without much assistance from the European Commission, as the Commission has repeatedly indicated that it has no competence to act on freedom of information issues. From a European Union perspective, this is a shame, as the harmonization intended by the PSI directive may be set back again. However, there are other guidelines and legislations to take inspiration from, such as the OECD Recommendation for Enhanced Access and More Effective Use of Public Sector Information and the Council of Europe Convention on Access to Official Documents. Based on these, the Member States should start thinking about developing information policies, going beyond occasional good practices, based on open data for any purpose.