The 'Licensing' of Public Sector Information

AutoreMarco Ricolfi - Mireille Van Eechoud - Federico Morando - Prodromos Tziavos - Luis Ferrao
Pagine129-146
The “Licensing” of Public Sector Information
MARCO RI COL FI, MI REI LLE VAN EECH OUD
FEDE RIC O MORA NDO , PRODRO MOS TZ IAVOS, LUI S FERRAO
SUMM ARY:1. The Issue To Be Reviewed – 2. The Controlling Provisions and the Prin-
ciples Underlying Them – 2.1. The Goal of Fostering the Emergence of EU-wide Infor-
mation Services and the Role of Interoperability – 2.2. The Competitiveness Mandate
– 2.3. Minimum Harmonization and Subsidiarity – 3. Openness and Interoperability
in the Re-use of PSI: A Brief Review of Outstanding Legal Issues – 3.1. To Licence
or Not To Licence? – 3.2. Public Domain Dedication – 3.3. Licences – 3.4. Contrac-
tual Undertakings to Be Given by the Re-user to the PSIH – 3.5. “Mind the Gap”: A
Hidden Threat to Interoperability – 4. Interoperability in the Re-use of PSI: A Very
Brief Review of Outstanding Technological Issues – 5. Where Do We Go from Here?
– 5.1. Doing Nothing – 5.2. Leaving the Task to Spontaneous Market Mechanism –
5.3. Top-down Action – 5.4. An Interoperability-fostering Mechanism
1. THE I SSU E TOBEREVI EWE D
The impact assessment exercise under Art. 13(2) of the PSI Directive does
not explicitly deal with licensing issue. However, there is no doubt that the
licensing policies adopted by public sector information holders (PSIHs) di-
rectly affect two of the items expressly mentioned in Art. 13(2): the extent
of re-use of public sector information and its increase rate. Moreover the
optimization of rules and policies also has a direct link with the “further
possibilities of improving the public functioning of the internal market and
the development of the European content industry”, which in turn is ex-
pressly mentioned in Art. 13(2). Therefore a specif‌ic inquiry into this area
is entirely consistent, and arguably also indispensible, with the scope of the
M. Ricolf‌i is Professor of Intellectual Property Law at Turin Law School and LAP-
SI coordinator; M. van Eechoud is Associate Professor of Information Law at the Institute
for Information Law at the Universityof Ams terdam; F. Morando is Managing Director of
NEXA Research Centre; P. Tziavos is a Post-doctoral fellow at the London School of Eco-
nomics; L. Ferrao belongs to the EC. This paper, the previous and the following ones have
been produced by LAPSI, the European Thematic Networkon Legal Aspects of Public Sec-
tor Information re-use. The LAPSI Thematic Network produced these papers in view of
the impact assessment exercise linked tothe revision of the Directive 2003/98/EC scheduled
for 2012. These papers will be updated and improved until the end of the LAPSI Project
(September 2012).
130 Informatica e diritto /Il quadro giuridico
review and of the impact assessment exercise. In this context, the issue for
which LAPSI’s contribution is sought is described as follows:
“Licensing. Are there licensing issues further facilitating re-use of PSI that
could be brought forward by legislative measures, by amending the current
provision of Article 8 of the Directive, or other measures? If yes, which
could/should they be?”
Accordingly, the analysis builds on a review of the currently applicable pro-
visions of the Directive which deal with licenses both at the legal and tech-
nological level (in par. 2); presents an analytical framework to explore the
impact of the legal tools under which public sector information is made
available, including but not limited to licensing arrangements, on the pos-
sibility of merging different PSI data sets and facilitating the emergence of
pan European PSI-based services (in par. 3); discusses the interplay of these
legal tools and of some of the technological determinants of the quantity
and quality of re-use (formats; standards and interoperability; searchability)
(in par. 4); and, f‌inally presents a number of options available in connection
with the opportunity of amending current provisions in the area, including
Art. 8 of the Directive (in par. 5).
2. THE CO NTRO LLI NG PROVIS ION S AN D THE PR INC IPL ES UND ERLY-
ING TH EM
While only one provision of the Directive, Art. 8, is specif‌ically devoted
to “licenses”, there is a number of recitals and provisions which directly or
indirectly deal with the issue. These may be grouped in three clusters, which
will be separately examined hereafter to assess the impact the underlying
principles may have on the issue of the optimal design of licensing tools for
public sector information.
2.1. The Goal of Fostering the Emergence of EU-wide Information Services and
the Role of Interoperability
According to the current text of the Directive, licensing of PSI is to be
consistent, among others, with the fundamental and overarching objective
of contributing to the establishment of an internal market (Recital 1) and
more specif‌ically to “the creation of conditions conducive to the develop-
ment of Community-wide services” (Recital 5). As “broad cross-border ge-
ographical coverage [of the relevant information services]will be essential

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