Public authorities hold enormous amounts of data that could be used by citizens, companies and organisations. The (re-)use of this data is regulated by way of rules for open data and rules for the actual (re-)use of public sector information. The revised European PSI Directive is currently being transposed into internal law.
Globally, access to information is an increasingly important part of daily life. Government authorities in particular hold enormous amounts of data which citizens, companies and organisations might be interested in for the purposes of "re-use". The data sets of governments can be used to develop applications to improve services for citizens. According to the European Commission, the total economic benefit resulting from access to government data can reach up to EUR 40 billion per year. Agoria, the Belgian technology industry federation, estimates the potential net gains for Belgium at EUR 900 million. In recent years, the federal, regional and local governments in Belgium have made their data available to citizens, associations and companies. For anyone interested in this development, expertise concerning the possibilities and practicalities is obviously essential.
At both the federal and the regional level, an open data policy framework has been put in place. This governs the information a government collects while attending to its public duties and which is not, or is only minimally, affected by issues of privacy, security, patents, copyright, time limits, etc. Of course, not all government data is re-usable. A public authority has to consider possible legal impediments. These principally concern intellectual property rights, the rules about the processing of personal data, and possible exceptions to the principle of freedom of information.
In addition, specific rules shape the re-use of public sector information. In 2003, Directive 2003/98/EC on the re-use of public sector information was adopted at the European level (the "PSI Directive" – "PSI" stands for "public sector information"). Its goal was to stimulate the European information market by harmonising the rules concerning the availability of government data for re-use and to guarantee a level playing field on the information market. An evaluation of the Directive revealed that considerable barriers to the re-use of public sector information becoming widespread remained in place. As a result, the directive was adapted in 2013.
In the revised PSI Directive, a right to re-use generally accessible public documents was added, unless that access is limited or excluded by national rules concerning access to those documents and notwithstanding other exceptions provided in the Directive. Charges for the provision of the data are, in principle, determined by the marginal costs for reproduction, provision and dissemination, although there are some exceptions.
Public sector bodies can, where appropriate, make the re-use conditional by requiring a licence, acknowledgement of sources and the mentioning of any change made to the information by the re-user. Nevertheless, licences should contain as few restrictions as possible. Simple, standard licences have been developed.
Competition law must also be observed. Exclusive right arrangements between public sector bodies and private sector partners should be avoided as much as possible. An exclusive right to re-use certain public sector information may, nevertheless, be necessary with a view to the provision of a service in the public interest.
Remarkably, the applicability of the Directive has been extended to libraries (including university libraries), museums and archives. They are under a different regime, however: there is no obligation for them to allow re-use; they can impose higher charges and can agree to exclusivity in the context of digitisation projects. Other cultural establishments are not included in the Directive. Wider possibilities for re-use of public cultural resources should allow European companies to develop their potential and to contribute to economic growth and the creation of employment.
With regard to Flanders, the new Directive was implemented by amending, through a Decree of 12 June 2015, the existing Decree of 27 April 2007 concerning the re-use of public sector information. In the Flemish Decree, re-use is defined, in accordance with the PSI Directive, as "the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced". The use of public sector documents within the public authority itself exclusively for other purposes within the scope of its public task, and the exchange of documents between public sector bodies purely in pursuit of their public tasks, do not constitute re-use.
So, in principle, every public authority allows the re-use of public sector documents that it holds, both for commercial and non-commercial purposes, in accordance with the provisions of the Decree. Again, not all public sector documents are available for re-use. Excluded, among other things, are documents for which the authority does not have the necessary rights, documents or parts of documents to which access is excluded based on the applicable regulations regarding access to public sector documents, and documents held by educational or research establishments (including organisations established for the transfer of research results, schools and establishments of higher education, but excluding libraries of establishments for higher education).
In addition, authorities cannot be compelled to create or adapt public sector documents in order to meet a request for re-use, or to provide extracts of such documents where this would involve disproportionate effort. Likewise, authorities cannot be required on the basis of this Decree to continue the production of a certain type of public sector document.
The new modifications to the Flemish Decree largely flow from the Directive, but at some points they go beyond it. For example, a proactive meaning is given to "re-use", following the open data policy adopted by the Flemish Government (developed in the Flemish Open Data Action Plan of 19 July 2013). Also, the fact that intellectual rights rest with third parties does not automatically exclude a public sector document from re-use. As a starting point, the "Open Data Portal" (see www.vlaanderen.be/opendata) provides access to a large number of data sets available for re-use.
At the Federal level, the original PSI Directive was implemented by an act of 7 March 2007. The Federal Government, in turn, has prepared a draft act to implement the revised PSI Directive. This draft act was submitted to the Council of State and the Privacy Commission for advice in July. The re-use of open data will be the starting point here as well. A federal open data strategy also substantiates a number of policy aims. In the meantime, the German-speaking Community has also implemented the PSI Directive in its Decree of 29 June 2015 amending the Decree of 18 December 2006 with regard to the re-use of public sector documents.