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I have worked
closely with the development of this Directive.
I will explain the background of this Directive, the initial
barriers, and what we expect from this Directive in the future.
Public sector
content is the prime content resource, derived from many areas including:
law, environmental information, and company information.
PSI is important for helping new business and services, as well as
citizens, protect their interests in a democratic society.
The focus of the PSI Directive is the re‑use of PSI in
services and new products. The
PSI content sector is huge in euro terms – the largest content sector to
be developed in Europe thus far. To
fully utilise this resource in the information age, this directive is
trying to address certain barriers at a European level.
In surveying
the world scene, as we do when establishing new laws and regulations in
Europe, we looked towards IT in the US.
The information market built on PSI in the US functions better than
in Europe. One regulatory
reason is the strong Freedom of Information Act in the US, which allows
deeper access to information than European law does.
The US also has a different copyright regime on PSI at the federal
level. This does not apply
directly to the state level, but at the state level they have more lenient
practices than exist in Europe.
Additionally,
the US maintains licence conditions which are lenient to industry; there
are no laws on the type of use and re‑use of PSI.
The US also charges on a cost‑recovery principle, based on
the production and dissemination of information.
Some European
countries are developing their information policies, to unleash their
content resource, while others are not.
The importance of establishing a level playing field for the
re‑use of PSI in Europe was raised in the pilot
study from
the September 2002 Conference.
Why is it so
difficult to make European products and services based on PSI information? First, there is a lack of clear rules and policies; there are
historical reasons behind this. European
countries have different ways of working with information resources and
licensing them – if they licence at all.
This is based not on any intentional wrongdoing, but on a long
history of holding the monopoly position on these information resources.
Public sector
mindsets can also prevent progress. In
the transition from an analogue to a digital world, some public sector
bodies still feel that if you want to create a digital product or service,
you can simply ask whoever made the original analogue product or service
to create a digital version.
Unfair
competition and exclusive arrangements are another issue: specific vendors
are sometimes given exclusive rights to material which, in the Information
Society, should belong to everyone.
Monopolists are
not forced to review their pricing and cost mechanisms; many public sector
bodies charge a great deal more than is charged in the US.
You would have to pay €5,000 to access historical weather data
covering the whole of the US since 1948.
For the same data for one specific European country, you would have
to pay in the region of €1.5 million.
Hence, based on that cost mechanism it would be very difficult, if
not impossible, to establish European cross‑border services and
products based on PSI.
To create
services and products, you need to know what is available; from our
perspective, that is another crucial issue.
It is very difficult to learn what information the public sector
holds, and what conditions that information is licensed under.
The European
Commission has been aware of these problems for some time.
In 1989, a recommendation was issued to deal with some of these
problems, but nothing happened between 1989 and 1999.
To deal with this, a Green Paper was published in January 1999, and
a discussion was held with stakeholders.
The EADP was involved in that discussion, and gave its opinions on
behalf of the industry. Unsurprisingly,
a strong opinion was voiced advocating a directive on the exploitation of
PSI.
It is important
to realise that this directive is part of a more coherent strategy to
bring information to the marketplace in the Information Society.
The proposed directive is part of the e‑Europe Action Plan
2002, updated to the e‑Europe Action Plan 2005, which deals with PSI
in the context of the e‑content programme and progression on
e‑Government services. In its communication of 23 October 2001, the
Commission indicated its basic orientation towards a possible legal
instrument and announced the directive.
The big question was: would it be possible to find a means of
solving these crucial issues for the information market?
The proposal
tries to establish a minimum level of harmonisation to facilitate
cross‑border use. It
also tries to establish a certain level of transparency as to the type of
information available, the conditions that apply to the re‑use of
information, and the procedures that apply when entering into negotiation
with a PSI body on the re‑use of material.
The proposal
looks at the issue of abuse of market power, such as exclusive
arrangements and cross subsidies. There
are currently problems associated with private companies entering into a
specific field trying to re‑use PSI if the public sector is also
making money from the information in that field.
The proposal
establishes a rule, in principle, of non‑discrimination, under which
anyone should be able to make products and services based on the same type
of information.
This proposal
was adopted by the Commission on 5 June 2002, again following an online
consultation. Issues were
raised in this consultation relating to the access regime, which were
taken up in the final proposal. This
is a market legislation, not a freedom of information legislation, even
though industry might be looking for that.
The issue of public sector bodies’ intellectual property rights
was raised.
Over the last
twenty years, public sector bodies have in some cases been pushed to the
marketplace regarding charging; it is difficult not to take this into
account when establishing a directive in this sector.
Additionally, administrations felt that certain issues about the
practical burdens the directive would bring, including publishing lists
and establishing licensing conditions, should be taken into consideration.
What has
happened? This directive is
under co‑decision procedure, so both Parliament and Council are
involved. Parliament made its
vote in its first reading, on 12 January 2003; there was a Council common
position on 26 May 2003, and the Parliament is expected to vote in the
second reading in the last week of September.
As it currently stands, in the absence of any further contextual
difficulties, there will be a directive on the re‑use of PSI by the
end of this year. It will
then take the normal 18 months before transposition into the Member
States’legislation.
What are the
results of this directive? We
hope to establish some form of transparency and fair competition in this
marketplace. Even though the
charging Article is not optimal from an industry perspective, we hope it
will exert downward pressure on charges in the long run.
At some stage, the public sector must establish accounting
mechanisms to validate their information price calculations.
From an
internal market perspective, it is also important to us that this is the
first time some EU countries have legislated on this; other countries have
had legislation in this area, though not as strong as this.
We hope the coming directive will speed up the developments in
other countries with no experience in this area.
Under a
three‑year review clause, we have the opportunity to see how this
develops and, hopefully, after a public sector culture change, to return
with corrections if necessary. Hopefully,
this will change the public sector culture such that they begin to relate
to industry with an industry perspective, and stop behaving
monopolistically on information that has already been paid for by the
taxpayer.
We
hope this is the beginning of a healthy cross‑border content market,
which is important for the Information Society; PSI is significant in this
marketplace. We hope this
directive will create a minimum of legal security, will stimulate
investments, and will overcome the barriers that currently prevent the
further growth of economic activity and employment.
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