The PSI Directive needs to be broadened, by increasing its scope to include publicly funded memory organisations - such as museums or galleries - and strengthened by mandating that Public Sector Information will be made freely available for all to use and re-use without restriction.

(Corresponding to COMMUNIA Policy Recommendation 13 - Download Postcard)

Currently publicly funded memory organisations fall outside the scope of the PSI directive. In order to strengthen the position of these organisations they should be brought within the scope of the directive. The directive also needs to be strengthened by mandating that Public Sector Information will be made freely available for all to use and re-use without restrictions. What has been paid for by the public must be available to the public regardless of the nature of the intended uses.

Background and Discussion

Public sector information (“PSI”) is produced and collected by public bodies and includes digital maps, meteorological, legal, traffic, financial, economic and other data. PSI is the major source of information in Europe. As the Commission notes on the Europe’s Information Society Thematic Portal, the great value of PSI lies in the potential for re-use of the data.

[ . . . ] Most of this raw data could be re-used or integrated into new products and services, which we use on a daily basis, such as car navigation systems, weather forecasts, financial and insurance services. [ . . . ] 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.^[63] 

The Commission fully understands the value of re-use of PSI by highlighting that “[i]ncrease in the re-use of PSI generates new businesses and jobs and provides consumers with more choice and more value for money.”^[64] According to surveys conducted by the European Commission in 2006, the overall market size for PSI in the EU is estimated between 27 billion^[65] and 68 billion annually.^[66] 

Since the adoption of the European Directive on the re-use of public sector information in 2003 (PSI Directive), digitization has multiplied the economic potential of PSI. Therefore, the Digital Agenda for Europe and the Commission work program 2011 have signaled the review of the PSI Directive as one of the key actions for propelling European growth.

COMMUNIA has investigated the matter of PSI in several occasions, especially at the 5th COMMUNIA Workshop, co-organized by the Open Knowledge Foundation and London School of Economics, focusing on Accessing, Using and Reusing Public Sector Content and Data. In the context of a review of the PSI Directive, COMMUNIA recommends the Commission to discuss and consider few actions to be undertaken to the extract all the economic potential from PSI.

11.1. The Commission should broaden and strengthen the PSI Directive, by increasing its scope and urging Member States to make Public Sector Information freely available for all to use and re-use without restriction.

COMMUNIA reinstate that it should be recognized that Public Sector Information is a crucial part of the digital public domain. All official documents, including laws, other official text of a legislative, administrative or legal nature, official translations of such texts, speeches delivered in the course of legal proceedings or by publicly elected or appointed officials, should fall in the structural public domain. Access to and re-use of PSI should be included in the functional public domain. This will create a flourishing information economy and a strong European digital society. In order to create a flourishing information economy, strengthen European digital society and build a fast growing and wealthy market, barriers to access and transaction costs should be as low as possible.

To that end, PSI materials should follow the open by default rule, which means: (1) using standard legal tools, such as Creative Commons, General Public Licence, etc., reconstructing a legal status as similar as possible to the public domain, such as Creative Commons Zero (CC0); (2) being accessible as raw data, machine readable formats on the Internet without restrictions; (3) being free of charge. In particular, public sector information available in digital format should be open.

The open by default rule could have some exceptions that should be motivated on a case by case basis according to the following principles: (i) licensing restrictions related to special type of data (privacy, etc.) or chain of authorization may be taken into account; (ii) the infrastructure to give access should be as efficient as possible; (iii) when it is necessary to charge a price, the pricing mechanism should be based on hard evidence of the cost directly related to process; (iv) reasonable restrictions related to the materiality of some supports may be taken into account (i.e. no flash in museums; limited access to ancient manuscripts).

Whilst fee-based charging for a service and related material should continue, COMMUNIA notes that making digital upstream non-personal PSI available at marginal cost of distribution, which is close to zero, bears several benign effects. Firstly, it encourages the government to ration PSI to what it really needs to be considered for good government (a good that is produced with public money and should be enjoyed by the public at cost of distribution) and to fulfil its statutory duty at minimum costs. Secondly, the re-use by the private sector and individuals is genuinely encouraged, creating innovation and enterprise. Finally, the current internal PSI licencing complexities that bedevil the public sector would largely be eradicated.^[67]

Additionally, COMMUNIA would like to stress that PSI should be always made available for public reuse, including commercial re-use. Only the information that is actively made available in open standards under terms that allow all forms of re-use is likely to contribute to the creation of economic and social wealth.  Under the assumption that legal constraint on the re-use of PSI are not increased, COMMUNIA promotes the use of Creative Commons Attribution Licences (CC-by) for PSI, as detailed in the IViR Report, Creative Commons Licencing for Public Sector Information.^[68]

Finally, a proper regulatory authority responsible for oversight of PSI provision, maintenance, licencing and pricing should be created at the European level and national level.

11.2. Broaden the scope of the PSI Directive to include publicly funded cultural heritage organisations - such as museums or galleries.

The directive does not currently include publicly funded cultural heritage organisations - such as museums or galleries - within its scope. Under Article 2 of the Directive, certain types of content are excluded from the scope of the Directive including documents held by cultural institutions such as museums, libraries, archives, orchestras, operas, ballets and theatres (with other exemptions in this same article for secrecy, educational and research organisations and intellectual property rights of third parties).^[69] The directive could be broadened to include these kinds of organisations, which might encourage them to open up their content and data for others to reuse.

Opening up metadata about works and objects held by publicly funded cultural heritage organisations could be very useful to (i) help establish what is in the public domain in a given jurisdiction (as per the work on the calculators) and (ii) help to bootstrap a new generation of digital services for researchers and for the general public.

11.3. Broaden the evidence base for opening up PSI.

At present the European Commission primarily focuses on the value of PSI in a fairly narrow sense - e.g. citing the MEPSIR and PIRA study estimates of a market size of 27 or 68 billion Euros, respectively. While this kind of evidence is obviously crucial for European policymakers, the Commission should also take into account other potential benefits of opening up PSI, such as improvements to public service delivery, greater accountability of public bodies, the intrinsic value of PSI (e.g. cultural or educational), and enabling the creation of new digital services for citizens.

Additionally, COMMUNIA emphasizes that open access and free re-use of PSI is pivotal to boost the democratic process. PSI encompasses a large amount of extremely sensitive data, including information related to (i) political decision-making processes, (ii) environmental and health issues, and (iii) different cultures and their histories. To this regard, any new policy strategies should take into account that opening up access to and re-use of PSI will empower people with less ability to finance creation and dissemination of their speech. Open PSI will contribute to the goal of bringing “the millions of dispossessed and disadvantaged Europeans in from the margins of society and cultural policy in from the margins of governance.”^[70] The quality and democratic value of PSI, not only the economic value, must be carefully pondered and investigated when discussing new policy strategies.

Relevant Actions to Be Taken by:

50. European Commission (EC)

1. Review the PSI directive and include publicly funded memory institutions in its scope.
2. Broaden the evidence base for opening up PSI to social and democratic value

51. European Parliament (EP)

3. Review the PSI directive and include publicly funded memory institutions in its scope.

52. Member States (MS)

4. Review the national implementations of the PSI directive and include publicly funded memory institutions within their scope.
5. Make PSI freely available for all to use and re-use without restriction