Public Sector Information (PSI) in Europe
- Public Sector Information (PSI) in Europe
- Introduction to the Public Sector Information
- Works not granted copyright or exempted from copyright and similar rights protection
- Public Sector Information as exempted subject matter per se
- Non-copyrightable subject matter released as Public Sector Information
- Expiration of the Copyright Term (Public Domain Works)
- Limitations and Exceptions
- Use of Marks and Notices
- Licensing of Public Domain material released as Public Sector Information?
- Concluding Remarks and Recommendations for Public Sector Bodies licensing
- Directive 2013/37/EU on the reuse of public sector information
- Public Participation in Environmental Issues
Introduction to the Public Sector Information
PSI (acronym for Public Sector Information) can be defined as the wide range of information that public sector bodies collect, produce, reproduce and disseminate in many areas of activity while accomplishing their institutional tasks. PSI may include (among others) social, economic, geographical, cadastral, weather, tourist, and business information. Particularly, Public Sector Information acquires a specific legal meaning within the European Union, since it has been provided with a minimum set of rules contained in the Directive 2003/98/EC of 17 November 2003 on the re-use of public sector information (often referred to as the Directive on the re-use of Public Sector Information (PSI Directive)).
Public Sector Information is of particular relevance in the MP/MT context, particularly since a large amount of the content used for such purposes is Public Sector Information.
As Public Sector Information is deemed any form of document held by Public Sector Bodies (PSBs) of Member States (Art. 1(1) of the PSI 2013 Directive (2013/37/EU)).
According to Art.2(3) of the PSI 2013 Directive, “document” means:
- any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording);
- any part of such content;
As a result, a vast amount of information released publicly on the Internet by different EU Member States is within the scope of the Public Sector Information Directive and as such it is eligible for re-use by third parties both for commercial and non-commercial purposes.
While the discussion regarding disclosure and making available of Public Sector Information is dominated by the question of Public Sector Information licensing (covered also in this legal Encyclopedia), it is also likely that no licence is either necessary or possible to be used. This section covers three main cases:
- Public Sector Information exempted from copyright protection
- Public Sector Information on Public Domain works (copyright has expired)
Works not granted copyright or exempted from copyright and similar rights protection
A licence will not be necessary in the absence of copyright or similar rights (including neighbouring rights, the sui generis protection of databases or other similar rights) for that specific subject matter.
There are two main cases of Public Sector Information as copyright exempted subject matter:
Public Sector Information as exempted subject matter per se
Some jurisdictions do not assert copyright in PSI, so no license would be needed. The clarity of the regime varies in different jurisdictions: In some cases, this is clearly stated in the law, in some others this is information that could be provided by the National Copyright or Intellectual Property Office and in some others it is less than clear what the PSI status is and it has to be established on a case-by-case basis.
In such cases, the relevant national copyright law will make explicit reference to the types of works and uses of such works that are non-copyrightable subject matter. These will in most jurisdictions be text used to exercise the administrative powers or to offer public service. There are explicit references to judicial, legal and administrative texts, but the limits of the exemptions are to be defined on a national jurisdiction basis.
Content Provider’s Perspective
The content provider should at least use notices to indicate the copyright status of the work as Public Domain. The Creative Commons Public Domain Mark (PDM) could greatly contribute towards such directive.
The user could either make an assessment with regard to the copyright status of the work or seek for relevant notices. It is suggested that the user uses one of the Public Domain Calculators that are available to assist her in making the relevant decisions. If the work is not copyrighted, the user may use in any way she wishes. Because legislative material is very likely to fall under this category in most civil law jurisdictions, it is important to assess the status of the work at the country of origin.
Commercial legal databases
It could well be the case that the individual works are copyright-free, but their compilation is protected under copyright or the sui-generis database right. This is the case with most commercial legal databases. Hence, always pay attention to the source of the material: it is more likely to be Public Domain if it comes from an official or public web site.
Non-copyrightable subject matter released as Public Sector Information
The second case is different from the first case, as it is the nature of the PSI material rather than its use as PSI that renders it non-copyrightable.
These are mostly cases where the subject matter does not fulfil the requirements of originality and form to attract copyright protection or specific types of information, such as factual information, raw data or traditional knowledge. Such types of content constitute nonprotectable subject matter and hence do not require any type of licensing, irrespectively of whether they are Public Sector Information or not. However, it needs to be highlighted that once arranged in a systematic or methodical way, the resulting set of information may be protected under copyright (if the arrangement passes the criterion of originality) or the sui generis database right (if they constitute non-original compilations).
Content Provider’s Perspective
The content provider should identify such material and convey its legal status to the end user through some form of notice. However, because of the existence of the sui generis database right, which provides even mere information with a shell of a property right, it is in very few cases that non-copyrightable subject matter will be released as such. An interesting case in the scope of the Public Sector Information 2013 Directive will be the release of traditional knowledge material from museums, archives or libraries, including oral history and songs, which may be of great interest for MP purposes, however, even such content may attract copyright through its packaging (sound recordings, transcriptions etc.).
The user will have to assess whether the material is not copyrightable or not. This is often a difficult and ambiguous exercise and is –generally- suggested either to seek for some sort of notice or use of risk mitigation techniques.
Expiration of the Copyright Term (Public Domain Works)
A licence will also not be necessary when the copyright or similar rights term has expired. Works no longer protected by copyright because of the expiration of the economic rights term should be treated as public domain works and therefore should be freely re-used. The economic rights granted under the copyright regime typically expire 70 years after the death of the last co-author or 70 years after the publishing or recording, but rules may vary and the term of protection may be greater in special cases. Public Domain calculators are being developed to help assessing whether a work will be in the Public Domain in a particular jurisdiction.
Content Provider’s Perspective
A good practice here is not to license content that is in the public domain. The Content Providers often do not have a clear understanding of the copyright status of the information they release. It is strongly suggested to make an assessment of the duration of the information to be released and mark the works accordingly.
The lack of relevant documentation and harmonization in the term of protection of different works in different jurisdictions is likely to cause significant implementation issues with regard to the assessment of whether a particular work belongs to the public domain or not (due to term expiration reasons). The Public Domain Calculators may be useful with regard to an initial assessment of the copyright status of the work, but a risk mitigation strategy should always be applied.
Risk of infringement
The risk of infringement is reduced as we get closer to the term expiration, the work is of low commercial value and the use is non-commercial.
Limitations and Exceptions
A different, but related case, is when the Public Sector Bodies needs to use copyright material to perform its public task or where a court requires to have access to copyrighted subject matter in order to issue a decision. These are cases, where no permission or input licence is required for the Public Sector Body or court of justice to perform its mission or task, as it will normally fall under the limitations and exceptions, fair dealing or fair use rule and could hence be used without any additional permissions.
Content Provider’s Perspective
When such a material is to be disclosed or made available for re-use this cannot be done if it contains third party copyrighted material. While the exception will cover the use of the PSI, it will not necessarily cover its re-use. This is the reason why it is strongly suggested that Public Sector Bodies mark PSI containing third party material with some sort of meta-data or notice regarding the third party material.
The lack of a harmonized copyright limitations and exceptions regime across the EU has as a net effect an increasing uncertainty as to what falls within their scope. It is not clear whether the material, its use or the entity that performs it are such that they are considered as falling within the limitations and exceptions. The disparity between the fair use, fair doctrine and limitations and exceptions systems, further complicate the situation, making the request for a licence a safer option.
Use of Marks and Notices
It is highly recommended that, when Public Sector Information material is not covered by copyright or other similar rights or when it contains third party copyrighted material, the relevant marking is in place. This will increase legal certainty and allow the lowering of transaction costs.
This can be achieved in a standardized fashion by using the Creative Commons Public Domain Mark or by drafting an ad hoc notice.
Content Provider’s Perspective
Using a standardised tool such as the Public Domain Mark developed by Creative Commons provides the text in a language that is accompanied by metadata, valid across jurisdictions and translated in many languages. According to Creative Commons, the Public Domain Mark “is intended for use with old works that are free of copyright restrictions around the world, or works that have been affirmatively placed in the worldwide public domain prior to the expiration of copyright by the rights’ holder.” The Public Domain Mark tool provides the ability to generate HTML code to inform the public (and search engines) of the public domain status of the work.
The Public Domain Mark enables a person who wishes to mark the work as being in the public domain to include optional useful information, such as:
- Name of the work, e.g. title of the dataset;
- Name and URL of the author, e.g. the division or department releasing the Public Sector Information and the source page;
- Identifying individual or organisation, in case this information differs of the above, e.g. a higher level of the Public Sector Bodies which should be contacted for further information.
It is always preferable to search the material through search engines that allow the identification of the relevant licensing form or copyright status of the material or use relevant APIs or other technical means.
Licensing of Public Domain material released as Public Sector Information?
Public Sector Bodies should refrain from using licences for Public Sector Information, which is in the Public Domain. Such licences would create restrictions upon the use of works that are no longer protected by copyright or similar rights and can be freely used without any conditions.
Furthermore, since no copyright exists in a Public Domain work, there is no legal basis to license it. The PSI 2013 Directive explicitly makes reference to the possibility of releasing material without any conditions, and the case of Public Domain material clearly falls under such case.
In addition, it is not recommended to add a licence (and therefore restrictions where none should apply) to the digitised reproductions of analogue non-copyrightable data or Public Domain works. The mere act of digitisation is not a source of new rights and keeping digitised versions in the Public Domain will guarantee they remain free to use as the original work. Digital reproductions of works which are in the Public Domain must also belong to the Public Domain. Use of Public Domain works must not be limited by the addition of unnecessary licensing requirements. In some countries, the threshold for originality is low, and digitisation might open a claim to copyright, but it is not recommended to enforce that right.
Content Provider’s Perspective
Refrain from using any licence for PD material; instead use notices where applicable.
Ensure that the material used is indeed in the PD irrespective of the licensing scheme. Check if there is any additional form that may revert the resource to copyrighted material, e.g. book format protection, database right or digitization (depending on the jurisdiction).
Concluding Remarks and Recommendations for Public Sector Bodies licensing
Overall, the material released by Public Sector Bodies as Public Sector Information may be used in a number of occasions (…) without requiring additional permissions or even a licence, either because of it belonging to the Public Domain or because it falls within relevant limitations and exceptions. When a licence is required, the normal copyright rules should apply as stipulated in the entry on Copyright and Related Rights, where reference to Public Sector Information and the related licensing is also made.
Directive 2013/37/EU (the New PSI Directive), and previously Directive 2003/98/EC, allows for the release of PSI for re-use under a licence or without conditions (art. 8). This practically means that a Member State may choose to release Public Sector Information for re-use without a licence if this Public Sector Information is:
- in the Public Domain (e.g. because the duration of the copyright has expired),
- is exempt from Copyright law.
The experience of the open licensing community, even outside the realms of public data regulation, favors maximum simplicity in the release of public data. Such simplicity is best served when any type of work is made reusable without any limitation, or with very few limitations. This helps to ensure licence compatibility and increases the re-use of the content by the industry and the civil society. In turn, this best serves the objectives of the Directive, i.e. growth/job creation and the objective of the Digital Agenda 2020 for greater transparency in the activity of the Public Administration.
In the open licensing community this is amply demonstrated by the recent statement issued by Creative Commons after the 2013 Global Summit, effectively supporting the development of positive user rights in copyright law, rather than relying on list-based exceptions or open licensing as sufficient solutions. The need for copyright reform is beyond the scope of this report.
However, the fact that there is an urgent need for reducing uncertainty and complexity with regard to copyright limitations and exceptions–and that licensing is a patch rather than a fix to the problem–points at the direction of a legislative solution at the Member State level, something that the new Public Sector Information Directive makes possible and something that is followed by a number of Member States. This approach combined with an “openness by default” policy may allow the maximum benefits from opening Public Sector Information while substantially reducing transaction and clearance costs for potential re-users.
By Prodromos Tsiavos, Stelios Piperidis, Maria Gavrilidou, Penny Labropoulou and Tasos Patrikakos.
Directive 2013/37/EU on the reuse of public sector information
This EU directive makes a number of changes to the existing provision for reuse of public sector information, the main ones being to:
- make public sector bodies allow the reuse of existing and generally accessible documents they create, collect or hold. The effect of this is to make permitting reuse mandatory in most cases;
- extend the public sector information directive’s scope to cover public sector information held by public sector museums, libraries (including university libraries) and archives where they allow their information to be made available for reuse;
- introduce the principle that charges for reuse should be set at marginal cost, with exceptions in certain circumstances; and
- introduce a means of redress operated by an impartial review body with the power to make binding decisions on public sector bodies.
Public Participation in Environmental Issues
The United Nations Economic Commission for Europe, at its Convention at Aarhus, Denmark in 1998, created a framework for public access to environmental matters to which over fifty countries subscribed.
However, the European Union, itself a signatory to the Convention, has adopted two Directives as a basis for its Member States’ transposition of the provisions.
The first part of the Convention dealt with public access to environmental information. An EU-led regime had operated in UK since 1992. EU Directive 2003/4/EC of 28 th January 2003 provided a new Aarhus-based text to update the regime.
The second part of Aarhus provides for public participation in decisions on specific activities and also for public participation concerning plans, programmes and polices relating to the environment. The public participation provisions of the Aarhus Convention are set out in the Public Participation Directive 2003/35/EC.
Government, public authorities and other bodies frequently take decisions which may have a significant effect on the environment, as well as on public health and wellbeing. Effective public participation in environmental decision-making enables the public to express, and the decision-maker to take proper account of, opinions and concerns which may be relevant to the decisions. This increases the quality, accountability and transparency of the decision-making process and contributes to public awareness of environmental issues.