In the framework of the review of the PSI
Directive, which needs to be carried out by July
2018 in accordance with Article 13, the European
Commission is now reconsidering the exemption for
R&E establishments. In its stakeholder consultation
on the PSI Directive, the Commission has not only
addressed re-use of scientic information but
also explicitly considered access to it ; in fact, in
its recently published draft for a recast of the PSI
Directive (COM(2018) 234 nal), the Commission
explicitly proposes to include research data.
unites two worlds, which were separated 20 years
ago5 – the scientic OA-world and the general PSI-
world. As discourses have developed strictly in
parallel, so far there is no in-depth analysis of R&E
information from a PSI point of view.6 However,
times have changed dramatically: the OA-discussions
and models have matured, and digitization and
“datacation” have also signicantly advanced
since 2013. Given these technological and socio-
economic changes,7 a closer look at the functioning
of the PSI Directive and its possible application to
R&E establishments is desirable.
The analysis focuses on the legal aspects and
mechanisms of the PSI Directive. The central
question is what the legal consequences of applying
the PSI Directive to R&E establishments would be.
This can serve as a basis for economic research,
which is necessary for predicting regulatory impact.
What can already be said in general is that crucial
provisions of the PSI Directive are not entirely clear.
Therefore, their possible interpretations have to
be discussed before applying the PSI Directive to
R&E establishments. The analysis is structured
as follows: At the outset, OA-policies and open
education approaches are contrasted with the
origin and general concept of PSI and information
of R&E establishment in particular (sub B.).
Subsequently, the core of the analysis elaborates on
4 For the stakeholder consultation, see especially question
12b of the European Commission’s “Public Consultation on
the Review of the Directive on the Re-Use of Public Sector
Information (PSI Directive)”, running from 12 September
2017 to 12 December 2017. The Commission has published
the proposal for the recast of the PSI Directive on 25.4.2018,
COM(2018) 234 nal, which includes research data in its
Article 10 (see also Recitals 23 and 24 of the proposal).
However, as the focus is put on the current law, this
article does not explicitly comment or discuss the recent
proposal. Instead it shall provide the necessary background
5 See the Commission’s Green Paper on Public Sector
Information in the Information Society of 1998 as a starting
point for the PSI Directive, COM(1998) 585 nal.
6 As opposed to the title, focusing almost exclusively on
cultural institutions Jančič, M./Pusser, J./Sappa, C./
Torremans, P. (2012), Policy recommendation as to the
issue of the proposed inclusion of cultural and research
institutions in the scope of PSI Directive – Working Group 5,
6 Masaryk University Journal of Law and Technology 353.
7 For a recent overview see COM(2017) 228 nal.
the hypothetical question of what would happen if
one removes the exemption for R&E establishments
(sub C.). The discussion focuses on what sort of R&E
information would effectively fall within the scope
of the PSI Directive under which circumstances and
continues with elaborating the legal consequences
for such information. In the next step, the analysis
observes possible modications (as opposed to a
strict deletion of the exemption) of PSI rules that
address R&E establishments (sub D.). The current
provisions that address public libraries, museums,
and archives can give some guidance. The nal
section draws a conclusion (sub E.).
B. ‘Open Access’, ‘Open
Education’ and ‘PSI’
In the last two decades, the advancement of
digitization and the global connection have
brought up seminal debates and changes regarding
the dissemination of information and knowledge.
With respect to publicly funded information, the
developments are driven by the general political
thought that if production of information is nanced
by taxpayers’ money, it should be widely distributed
for (almost) free and without any restrictions that
apply to using such information. This basic rationale
nds support in information economics and pervades
three particular sorts of information that regulation
has so far treated quite separately: rst, the broad
concept of ‘PSI’, which largely refers to Open
Government Data (OGD); second, the ‘Open Access’
movement, which addresses scientic information
(publications and data) in particular; third, the
term ‘Open Education’, which relates to publicly
funded teaching materials and coursework. All of
these strands of debate converge when discussing
the R&E exemption in the PSI Directive. Therefore,
describing particular developments and frameworks
sets a starting point for discussion.
II. Open access to scientific
The OA-debate has a long-standing tradition in
science.8 Basically it centers on the political claim
of widely disseminating publicly funded scientic
information.9 Historically, it was a reaction of
8 Seminal Suber, P. (2012), Open Access; for a comprehensive
history of recent OA movements Scheufen, M. (2015),
Copyright Versus Open Access – On the Organisation and
International Political Economy of Access to Scientic
Knowledge, 65 et seq.
9 See Recital 5, Recommendation 2012/417/EU.