Europe and Belgium further expand possibilities for re-use of public sector information (open data)

Thanks to technological developments, the amount of data and the possibilities for the use of data have increased exponentially over the past decades. A good open data policy is important for achieving a European digital economy. The European Union recently adopted a new directive that further extends the possibilities for re-use of public sector information. Here we give you a brief overview of the new directive and of certain changes that have recently taken place at the national level.

New rules at the European level

On 20 June 2019, the European Union adopted Directive 2019/1024 on open data and the re-use of public sector information (the "Open Data Directive" or the "Directive"). The Directive replaces Directive 2003/98/EC (the "PSI Directive", previously amended by Directive 2013/37/EU). With the Open Data Directive, the European Union aims to remove persistent barriers to the re-use of public sector information and publicly funded information, thus allowing progress in the field of digital technologies and digital innovation, in particular through artificial intelligence, blockchain technology and Internet of Things technology.

In short, the philosophy of the open data legislation is to make existing government documents available for commercial and non-commercial re-use as much as possible and as easily as possible (open data by design and by default), subject to certain conditions and restrictions.

The Open Data Directive adds the following three new features to the existing open data legislation:

First, the Open Data Directive targets the documents of more government agencies than before. In addition to documents of public sector bodies, the Directive now includes documents of certain public undertakings operating in specific sectors (e.g. the sectors defined in the Public Procurement Sector Directive (Directive 2014/25/EU)). In Belgium, this extension of scope is unlikely to add much, as both the federal and the regional legislation on the re-use of public sector information already use a broad definition of the term "public sector".

In addition, the Directive also extends the range of data that can be re-used. The Directive now explicitly provides that it also applies to research data that have been publicly funded. Research data should, as far as possible, be made public for the purpose of re-use, but always in compliance with other applicable regulations, such as the legislation on the protection of personal data or intellectual property rights ("as open as possible, as closed as necessary"). Furthermore, the Directive encourages public authorities to make dynamic data, – i.e. data that are updated frequently or in real time, such as meteorological data and traffic data – available more quickly and effectively. Access to such dynamic data must be provided in real time and by appropriate technical means such as APIs (Application Programming Interfaces).

Finally, the Directive strengthens the transparency requirements for public–private PSI (public sector information) contracts by obliging public authorities to open up the re-use of documents to all potential market players, even if certain market players already exploit added-value products based on those documents, thus avoiding exclusive arrangements between public sector bodies or public undertakings and third parties (Article 12). It also limits the exceptions that allow public authorities to charge more than the marginal cost of dissemination for the re-use of their data (Article 6).

The Directive also requires the approval by the Commission (through a future implementing act) of a list of high-value datasets to be provided free of charge. High-value datasets are documents the re-use of which offers significant benefits for society, the environment and the economy, as they are suitable for developing applications and value-added services that have a large number of potential beneficiaries and thus create new, high-quality and decent jobs. These datasets are subject to separate rules to ensure that they are available free of charge, in machine-readable formats and via APIs and, where relevant, as a bulk download. The datasets fall within one of the following thematic categories: geospatial data, data on earth observation and environment, meteorological data, statistics, data on companies and company ownership and mobility data (Article 13(1)). An overview of the open datasets already available at the European level can be found on the European Open Data Portal.

The Open Data Directive entered into force on 16 July 2019. Member States must transpose it into their national law by 17 July 2021 at the latest.

Recent adaptation of the Belgian federal rules

The PSI Directive was transposed at the federal level into the Act of 4 May 2016 on the re-use of public sector information (the "Act of 4 May 2016"). In this act, the federal legislator developed its open data policy in order to strengthen Belgium's digital ecosystem. In a number of respects, the act went beyond the requirements of the European rules at the time.

Under the original Act of 4 May 2016, the principle was to make public sector information available for re-use as widely as possible by, among other things, limiting as much as possible the conditions for re-use, e.g. conditions imposed in licences. Standard licences with conditions for re-use explicitly mention the restrictions if prior permission is required, or if specific conditions are necessary. Such standard licences with conditions for re-use, as well as the cases in which governments must use those licences and the cases in which governments can deviate from them, had to be established by a royal decree (article 7 of the Act of 4 May 2016), but have never been established. 

The wording of the authorisation to the King was restrictive, as it only allowed the King to lay down rules for standard licences with conditions for re-use, without any provision being made for re-use with or without conditions, such as creative commons statements or licences with the sole condition of mentioning the name of the source. For this reason, the Act of 4 May 2016 was recently amended by the Act of 7 April 2019 and supplemented by the Royal Decree of 2 June 2019 ("RD").

The Act of 7 April 2019 removes the restriction to standard licences with conditions for re-use from the authorisation to the King, thus authorising the King to lay down further rules for re-use with or without conditions. The King made immediate use of this power and, in the Royal Decree of 2 June 2019, established a cascade of standardised model licences for re-use: 

  1. An unconditional Creative Commons Zero licence (CC0 licence): the re-user does not have to respect any restrictions or obtain further permission to use the data (article 2 RD);
  2. A licence with acknowledgement of source: the re-user must acknowledge the source (article 3 RD);
  3. A licence for re-use for a fee: the re-user must pay a fee to the government (article 4 RD); and
  4. A model licence to be determined by the government: the government imposes specific conditions on the re-user (article 5 RD).

Where the government does not use the CC0 licence, it must provide detailed reasons for this.

The Royal Decree also lays down detailed rules for the procedure for processing applications for re-use, for monitoring the obligation to make administrative documents available through a transparency committee and for the calculation of fees.

The available open data at the federal level can be found via the federal data portal.