A closer look at the new PSI Directive by Ton Zijlstra and Katleen Janssen

image by European People’s Party CC-BY-2.0, via Wikimedia Commons

On 10 April, the European Commission’s Vice-President Neelie Kroes, responsible for the Digital Agenda for Europe, announced that the European Union (EU) Member States have approved a text for the new PSI Directive. The PSI Directive governs the re-use of public sector information, otherwise known as as Open Government Data.

In this posting we take a closer look at the progress the EC press release claims, and make a comparison with the current PSI Directive. We base this comparison on the text (not officially published) of the output of the final trialogue of 25 March and apparently accepted by the Member States last week.

The final step now, after this acceptance by Member States, is the adoption of the same text by the European Parliament, who have been part of the trialogue and thus are likely to be in agreement. The vote in the ITRE Committee is planned on 25 April, and the plenary Parliament vote on 11 June. Member States will then have 24 months to transpose the new directive into national law, which means it should be in force towards the end of 2015 across the EU.

The Open Data yardstick

The existing PSI Directive was adopted in 2003, well before the emergence of the Open Data movement, and written with mostly ‘traditional’ and existing re-users of government information in mind. Within the wider Open Data community this new PSI Directive will largely be judged by a) how well it moves towards embracing Open Data as the norm, in the sense of the Open Definition, and b) to what extent it makes this mandatory for EU Member States.

This means that scope and access rights, and redress options where those rights are denied, charging and licensing practices as well as standards and formats are of interest here. We will go through these points of interest point by point:

Access rights and scope

• The new PSI Directive brings museums, libraries and archives within its scope; however a range of exceptions and less strict rules apply to these data holders;
• The Directive builds, as before, on existing national legislation concerning freedom of information and privacy and data protection. This means it only looks at re-use in the context of what is already legally public, and it does not make pro-active publishing mandatory in any way;
• The general principle for re-use has been revised. Where the old directive describes cases where re-use has been allowed (making it dependent on that approval and thus leaving the choice to the Member States or the public bodies), the new directive says all documents within scope (i.e. legally public) shall be re-usable for commercial or non-commercial purposes. This is the source of the statement by Commissioner Neelie Kroes that a “genuine right to re-use public information, not present in the original 2003 Directive” has been created. For documents of museums, libraries, and archives the old rule applies: re-use needs to be allowed first (except for cultural resources that are opened up after exclusive agreements for their digitisation have ended – see below).

Asking for documents to re-use, and redress mechanisms if denied

• The way in which citizens can ask to be provided with documents for re-use, or the way government bodies can respond, has not changed;
• The redress mechanisms available to citizens have been specified in slightly more detail. It specifies that one of the ways of redress should be through an “impartial review body with appropriate expertise”, “swift” and with binding authority, “such as the national competition authority, the national access to documents authority or the national judicial authority”. This, although more specific than before, is not the creation of a specific, speedy and independent redress procedure hoped for.

Charging practices

• When charges apply, they shall be limited to the “marginal costs of reproduction, provision and dissemination”, which is left open to interpretation. Marginal costing is an important principle, as in the case of digital material it would normally mean no charges apply;
• The PSI Directive leaves room for exceptions to the stated norm of marginal costing, for public sector bodies who are required to generate revenue and for specifically excepted documents: firstly, they rely once more on the concept of the public task, which in the previous version of the directive has raised so much discussion; secondly, a distinction is made between institutions that have to generate revenue to cover a substantial part of all their costs and those that may generally be fully-funded by the State (except for particular datasets of which the collection, production, reproduction and dissemination has to be covered for a substantial part by revenue). Could this be a way to cover economic or even commercial activities, by defining them as a ‘public task’, thereby avoiding the non-discrimination rules requiring equal treatment of possible competitors?
• The exceptions remain bound to an upper limit, that of the old PSI directive for the exceptions relating to institutions having to generate revenue. For cultural institutions, the upper limit of the total income includes the costs of collection, production, preservation and rights clearance, reproduction and dissemination, together with a reasonable return on investment;
• How costs are structured and determined, and used to motivate standard charges, needs to be pre-established and published. 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);
• This requirement for standard charges to be fully transparent up-front, meaning before any request for re-use is submitted, might prove to have an interesting impact: it is unlikely that public sector bodies will go through establishing marginal costs and the underlying calculations for every data set they hold, but charges can no longer be applied as they have not been pre-established, motivated and published.

Licensing

• The new PSI Directive contains no changes concerning licensing, so no explicit move towards open licenses;
• Where Member States attach conditions to re-use, a standard license should be available, and public sector bodies should be encouraged to use it;
• Conditions to re-use should not unnecessarily restrict re-use, nor restrict competition;
• The Commission is asked to assist the Member States by creating guidelines, particularly relating to licensing.

Non-discrimination and Exclusive agreements

• The existing rules to ensuring non-discrimination in how conditions for re-use are applied, including for commercial activities by the public sector itself, are continued;
• Exclusive arrangements are not allowed as before, except for ensuring public interest services, or for digitisation projects by museums, libraries and archives. For the former, reviews are mandated every 3 years; for the latter, reviews are mandated after 10 years and then every 7 years. However, it is only the duration that should be reviewed, not their existence itself. In return for the exclusivity, the public body has to get a free copy of the cultural resources which must be available for re-use when the exclusive agreement ends. Here, the cultural institutions no longer have a choice whether to allow re-use, but it may be several years before the resource actually becomes available.

Formats and standards

• Open standards and machine readable formats should be used for both documents and their metadata, where easily possible, but otherwise any pre-existing format and language is acceptable.

In summary, the new PSI Directive does not seem to take the bold steps the open data movement has been clamoring for over the past five years. At the same time, real progress has been made. Member States with a constructive approach will feel encouraged to do more. Also, the effort of transparency in charging may dissuade public sector bodies from applying charges. But the new PSI Directive will not serve as a tool for citizens aiming for more openness by default and by design. Even with the new redress mechanisms, getting your rights acknowledged and acted upon will remain a long and arduous path as before.

It will be interesting to see the European Parliament, as representative body, debate this in plenary.

About the authors

Katleen Jansen is a postdoctoral researcher in information law at the Interdisciplinary Centre for Law and ICT of KU Leuven, coordinator of the LAPSI 2.0 thematic network (www.lapsi-project.eu) and board member of OKFN Belgium. She specialises in re-use of PSI, open data, access to information and spatial data infrastructures. Currently working on open data licensing for the Flemish Region.

Ton Zijlstra has been involved in open government data since 2008. He is working for local, national and international public sector bodies to help them ‘do open data well’, both as an activist and consultant. Ton wrote the first plans for the Dutch national data portal, did a stint as project lead for the European Commission at http://epsiplatform.eu, and is now partner at The Green Land, a Netherlands based open data consultancy. He is a regular keynote speaker on open data, open government, and disruptive change / complexity across Europe.