Directive 2003/98/EC

Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information

Published under Risk Management
Title: Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (also the ‘Public Sector Information Directive’ or briefly the ‘PSI Directive’)
Source reference: http://ec.europa.eu/information_society/policy/
Topic: Re-use of public sector information
Direct / indirect relevance Indirect. The text requires public administrations to conduct RM/RA analyses before making documents available for re-use, which implies an obligation to implement appropriate RM/RA practices with regard to information security.
Scope: Directly applicable to all EU Member States
Legal force: EU Directive, requires transposition into national law
Affected sectors: All sectors of e-government
Relevant provision(s): Article 1 – Subject matter and scope

1. This Directive establishes a minimum set of rules governing the re-use and the practical means of facilitating reuse of existing documents held by public sector bodies of the Member States.

2. This Directive shall not apply to:

(a) documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as defined by law or by other binding rules in the Member State, or in the absence of such rules as defined in line with common administrative practice in the Member State in question;
(b) documents for which third parties hold intellectual property rights;
(c) documents which are excluded from access by virtue of the access regimes in the Member States, including on the grounds of:
— the protection of national security (i.e. State security), defence, or public security,
— statistical or commercial confidentiality;
(d) documents held by public service broadcasters and their subsidiaries, and by other bodies or their subsidiaries for the fulfilment of a public service broadcasting remit;
(e) documents held by educational and research establishments, such as schools, universities, archives, libraries and research facilities including, where relevant, organisations established for the transfer of research results;
(f) documents held by cultural establishments, such as museums, libraries, archives, orchestras, operas, ballets and theatres.

3. This Directive builds on and is without prejudice to the existing access regimes in the Member States. This Directive shall not apply in cases in which citizens or companies have to prove a particular interest under the access regime to obtain access to the documents.

[…]

Article 11 – Prohibition of exclusive arrangements

1. The re-use of documents shall be open to all potential actors in the market, even if one or more market players already exploit added-value products based on these documents.
Contracts or other arrangements between the public sector bodies holding the documents and third parties shall not grant exclusive rights.
2. However, where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years. The exclusive arrangements established after the entry into force of this Directive shall be transparent and made public.
3. Existing exclusive arrangements that do not qualify for the exception under paragraph 2 shall be terminated at the end of the contract or in any case not later than 31 December 2008.
Relevance to RM/RA: While the principle of a right to re-use public sector information may not appear to have clear RA/RM implications, the provisions above show that such considerations are relevant on at least two fronts:

• When determining if a document is susceptible to re-use, the public sector body controlling it will have to assess risks of third party intellectual property rights claims, as well as potential threats to defence and public security, in addition to private interests. Thus, this implies a first RM/RA test which is certainly nontrivial.
• Secondly, when making documents available for re-use, an assessment needs to be made of whether the omission of exclusivity arrangements might prove to be a barrier to the provision of public services. While this may appear counterintuitive, in certain cases it is only economically viable to offer a specific service if one service provider is given exclusive rights to the information involved.

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