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.

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