Reform of European regulations on Open Data and Reuse of Public Sector Information

After the agreement reached between the Parliament, the Council and the Commission, the regulation replacing Directive 2003/98/EC, which was reformed in 2013, has just been published in the Official Journal of the European Union. This milestone is due to a review process that has been processed for several months at European level with a wide participation, which has made possible to incorporate not only the point of view of the Member States but also the concerns and contributions of the companies, associations, stakeholders and society in general.

Spain and the other member countries have until July 17, 2021 to transpose the directive.

Why is this reform necessary?

The current evolution of the technological, social and economic context demands a normative framework better adapted to the challenges facing the European Union. In particular, it is important to adapt legal guarantees to the demands of competitiveness and innovation brought about by technologies such as Artificial Intelligence or the Internet of Things. The text now presented is a first step in the process of modernizing the normative framework of open data and the reuse of public sector information, despite the partial reform that was completed only six years ago, that respond to  proposals from the beginning of the century and, therefore, clearly overcome.

Who does the reform refer to?

This regulation intends, in first place, to extend the scope of application of the previous regulations. In this sense, what refers to the obliged subjects, public companies and public undertakings are expressly included, always that they operate in the field of public sector contracting corresponding to the so-called "included sectors" (water, energy, transport and postal services) or they act as operators linked to public service obligations in the field of transport. On the contrary, the aforementioned companies are excluded when the information is generated outside the network of services of general interest or in activities where they act under a regime of free competition.

In addition, conditions to be considered as public undertaking are specifically established, that is, that there is a "dominant influence" by public sector bodies; an influence that may consist of the majority of the undertaking's subscribed capital, votes or , where applicable, the control of the administrative, management or supervisory bodies of the entity.

What are the novelties?

The new regulation extends the scope of its articles both in terms of certain material areas of special interest and data types of particular relevance.

• Thus, research data would be included in European regulation when the activity is funded with public funds, although the need to protect other legal assets, such as intellectual and industrial property, confidentiality derived from legitimate commercial interests or, where appropriate, the protection of personal data, is established. This difficult balance is formulated with a new principle to take into account in this area: the data will be "as open as possible, as closed as necessary”.
• Several references to metadata are also included in the article, so that the scope of the reuse obligations also extends to them. This way, the limitations of the previous and restrictive conception of the documents are overcome, so that in the new document definition any content and any part of it is understood.
• Another important novelty is the regulation of so-called dynamic data, of great importance for treatments based on Artificial Intelligence and those projects such as smart cities where the use of sensors and interconnections have a special role. Specifically, it is contemplated that this data would be made available immediately after compilation, through appropriate APIs and, even, in the form of a massive download when appropriate.
• A specific regime is also introduced for the so-called high-value datasets, initially limited to certain areas (geospatial, environmental, meteorological, statistical, societies and mobility) but with the authorization to be extended by the European Commission. These datasets can generate relevant socio-economic and environmental benefits, stimulate innovative services, benefit a large number of people or SMEs, as well as be combined with other datasets. For this reason, it is established that such dataset will be provided free of charge (with some exceptions) and in “machine-readable format”, through an API and, where appropriate, facilitating its massive download.

Other novelties to consider are:

• With regard to the conditions of reuse, the importance of the principle of open by design and by default is emphasized. However, this principle does not imply an obligation by public sector bodies to take disproportionate efforts to transform the information available according to these formal requirements.
• On the other hand, the criterion of the mere recovery of marginal costs is qualified, to the point that it would not apply to those organizations that are required to generate income to cover a substantial part of their costs to carry out the public service mission that they have entrusted, to libraries or to public companies. In these cases, there are special rules to establish the reasonable margin of benefit that is considered admissible or, as regards the libraries, to face the conservation and compensation rights, among other circumstances.
• Likewise, the measures relating to exclusive agreements are adapted. In this sense, its admissibility is contemplated for reasons of the provision of a service of public interest; specific rules are established for the cultural sphere and, likewise, the legality of those agreements that suppose not exclusively an exclusivity in the strict sense but, even, a mere limited availability, is conditioned.

Ultimately, this project intends to establish the legal conditions that allow facing the economic and social opportunities offered by the reuse of public data, in particular by advancing in a greater standardization that helps to overcome the obstacles of excessive regulatory fragmentation. But, as explicitly emphasized in the text, it is not enough to achieve purely economic objectives, but the promotion of the reuse of open data and public sector information is also a democratic requirement of great relevance to facilitate transparency and accountability.

Content prepared by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

Contents and points of view expressed in this publication are the exclusive responsibility of its author.