Open Science and Public Sector Information - Reconsidering the exemption for educational and research establishments under the Directive on re-use of public sector information

Author:Heiko Richter
Pages:51-74
SUMMARY

The article discusses the possibilities of including public research and educational establishments within the scope of the Directive regulating the re-use of public sector information (2003/98/EC - ‘PSI Directive’). It subsequently evaluates the legal consequences of such an inclusion. Focusing on scientific information, the analysis connects the long-standing debates about open access and open... (see full summary)

 
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Open Science and Public Sector Information
2018
51
1
Open Science and Public Sector Information
Reconsidering the exemption for educational and research
establishments under the Directive on re-use of public sector
information
by Heiko Richter*
© 2018 Heiko Richter
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Heiko Ric hter, Open Science and Public Sector Inf ormation – Reconsidering the exempti on for
educational and research e stablishments under the Direc tive on re-use of public sec tor information, 9 (2018) JIPI TEC 51
para 1.
is characterized by considerable legal uncertainty.
Therefore, it is difficult to derive robust assumptions
that can form the basis for predicting the effects of
extending the PSI Directive’s scope to research in-
formation. A potential revision of the PSI Directive
should reduce this uncertainty. Moreover, PSI regula-
tion must account for the specific incentives linked to
the creation and dissemination of research results.
This seems of primary importance for public-private
research collaborations because there is a potential
risk that a full application of the PSI Directive might
unduly affect incentives for such collaborations.
Abstract: The article discusses the possibili-
ties of including public research and educational es-
tablishments within the scope of the Directive reg-
ulating the re-use of public sector information
(2003/98/EC – ‘PSI Directive’). It subsequently eval-
uates the legal consequences of such an inclusion.
Focusing on scientific information, the analysis con-
nects the long-standing debates about open access
and open education to open government data. Their
common driving force is the call for a widespread dis-
semination of publicly funded information. However,
the regulatory standard set out by the PSI Directive
A. Introduction
1
The PSI Directive
1
regulates the re-use of public
sector information (PSI). Since the Directive entered
into force in 2003, it has contained an exemption
for research and educational (R&E) establishments
* LL.M. (Columbia), Max Planck Institute for Innovation and
Competition, Munich.
1 The term ‘PSI Directive’ refers to the Directive 2003/98/EC on
the re-use of public sector information of 17 November 2003
as amended by Directive 2013/37/EU of June 2013. As there
are different Recitals to both Directives, it is distinguished
between Recitals (2003/98/EC) and Recitals (2013/37/EU)
if necessary. Recitals of both Directives are relevant for
the interpretation of the Directive in its current form, see
Richter, H. (2018), Informationsweiterverwendungsgesetz
(IWG), Einl para. 37 et seq.
in Article
2
1(2)(e). As a consequence, rules for re-
using a large amount of valuable information (such
as research datasets, publications or educational
material) are either non-existent or fragmented
across the EU. In the process of amending the
PSI Directive in 2013, the European Commission
discussed whether to bring R&E establishments
within its scope. However, this was rejected for
three reasons: the high burden for clarifying the
legal status of research data to make them re-usable
under the rules of the PSI Directive would exceed
the benets; the existence of a dynamic and well-
established system for disseminating and exploiting
research ndings and results; and the distinct
character of the open access (OA) debate, which is
separate from the PSI debate.3
2 Articles refer to the PSI Directive if not stated otherwise.
3 See SEC(2011) 1152 nal, 33 et seq.
Keywords: Public Sector Information; Scientific Information; Open Access; Open Education; Database Protection;
PSI Directive; Open Government Data; Re-Use of Information; Copyright; EU Copyright Reform
2018
Heiko Richter
52
1
2
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 scientic 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.
4
This
unites two worlds, which were separated 20 years
ago5 – the scientic 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
“datacation” have also signicantly 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.
3
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
knowledge.
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 modications (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’
I. Overview
4
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 scientic 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
information
5
The OA-debate has a long-standing tradition in
science.8 Basically it centers on the political claim
of widely disseminating publicly funded scientic
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 Scientic
Knowledge, 65 et seq.
9 See Recital 5, Recommendation 2012/417/EU.

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