According to Europe’s Information Society, Public Sector Information (PSI) is the single largest source of information in Europe. This information is collected by public bodies, and varies from meteorological information to legal or even economic data. Because every member state already collects this data, there is an enormous amount data generated. The European Commission believes, creating a platform, on which the PSI of all member States is available to the general public, will be a big step forward for the internal market of the EU. Therefore, the European Commission is now trying to create a EU-wide platform for the re-use of PSI and Open Data. 

'Re-use of public-sector information means using it in new ways by adding value to it, combining information from different sources, making mash-ups and new applications, both for commercial and non-commercial purposes. Public-sector information has great economic potential,' says the Commission. 

An example of this would be to use or combine certain information and create a smartphone application around it. That way, PSI generates commercial value. 

However, creating such a platform is not done overnight; there are numerous legal, technical, social and market-related challenges to face. Not all the collected information is in the same language, not every country uses the same formats for its data and it’s very complex to harmonize legal frameworks because of incompatible licensing policies in the different member states. 

Besides, not all of the collected data lends itself to be publicly available. The content of the data may be protected by other rights, such as copyright or neighboring rights, and should therefore not be publicly available. The UK was the first of the Member States to create an Open Data Portal. The initiative has been well received in the rest of Europe and now we can find open data portals on all levels in several Member States. However, not all data is publicly available. Some categories of data remain undisclosed for policy reasons, others are protected by copyright. Notwithstanding the restrictions of these kinds of data, openness can be requested under the Freedom of Information Act (FOIA). In the UK, this has lead to questions concerning the relationship between copyright in the public sector and transparency: does copyright-law undermine freedom of information? The UK’s Information Commissioner’s Office (ICO) stated the following:

‘Providing information in response to a request made under the Freedom of Information Act constitutes an act specifically authorized under Act of Parliament. Consequently disclosing information under FOIA will not infringe copyright.’… ‘ Copyright will still apply to the information once it has been disclosed under FOIA’…’the person who receives the information under FOIA is still obliged, by law, to respect the rights of the copyright owner.’ 

The UK's Copyright, Designs and Patents Act (CDPA) contains an exception to infringement of copyright that enables disclosure of PSI to take place.

The ICO created a dichotomy between information that is copyright protected because of its commercial value, and data protected by copyright for other then commercial purposes. If data has a commercial value, and exploitation by the public body interferes with private sector activities, then the public bodies should disclose the requested information. However, if the copyright protection serves to protect a public interest, the public bodies might withhold the information. This is not an absolute privilege though. 

Public Sector Information and Open Data is becoming increasingly important. Both in the sense of economics  and as a means of government transparency. The EU initiative to create an EU-wide Open Data portal does sound very interesting. However, not all information is suitable for disclosure to the public and might just be available upon request. 

Sources: European Commission Information Society, The Register

Read more about this topic on Future of Copyright:

• Kroes: "EU-funded research should be open to all"
• Kroes: Coordinated policy across EU crucial to develop common market for digital content

By: Nathalie Falot