The 'Principles Governing Charging' for Re-use of Public Sector Information

• Autore: Marco Ricolfi - Josef Drexl - Mireille Van Eechoud - Katleen Janssen - Maria Teresa Maggiolino - Federico Morando - Cristiana Sappa - Paul Torremans - Paul Uhlir - Raimondo Iemma - Marc de Vries
• Pagine: 105-127

The “Principles Governing Charging”

for Re-use of Public Sector Information

MARCO RI COL FI, JO SEF DR EXL , MIRE ILL E VAN EECH OUD

KATLE EN JANSS EN, MA RIA TE RESA MAG GIO LIN O

FEDE RIC O MORA NDO , CRIS TIA NA SAPPA, PAUL TO RRE MAN S

PAUL UHLI R, RAI MON DO IEM MA, MA RC DE VRI ES∗

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 of Contributing to the Advancement of the EU Society at Large –

2.2. The Competitiveness Mandate – 2.3. Minimum Harmonization and Subsidiarity

– 3. The Rationale for a Charging Policy Based on Marginal Cost of Reproduction and

Distribution of PSI and Its Corollaries – 4. The Exercise and Its Design – 5. Charging

Policy, WelfareMaximization and Subsidiarity – 6. Char ging and the Emergence of a

Competitive, Cross-border Market in Information Services – 7. The Options – 8. Final

Remarks

1. THE IS SUE TOBEREV IEW ED

It is anticipated that the “principles governing charging”for re-use of pub-

lic sector information held by public sector bodies will be subject to the im-

pact assessment exercise under Art. 13(2) of the Directive and to a thorough

∗M. Ricolf‌i is Professor of Intellectual Property Law at Turin Law School and LAPSI

coordinator; J. Drexl is Director of the Max Planck Institute for Intellectual Property and

Competition Law; M. van Eechoud is Associate Professor of Information Law at the Insti-

tute for Information Law at the University of Amsterdam; K. Janssen is Senior Researcher

at Catholic University of Leuven; M.T. Maggiolino is Researcher at the Angelo Straffa Legal

Science Dept. of the Bocconi University; F. Morando is Managing Director of NEXA Re-

search Centre; C. Sappa is LAPSI Project Manager and Post-doc Researcher in Intellectual

Property at Turin Law School, P. Torremans is Professor of Intellectual Property Law, Fa-

culty of Social Sciences at University of Notthingam; P. Uhlir is Director of International

Scientif‌ic and Technical (S&T) Information Programs at The National Academies in Wa-

shington D.C.; R. Iemma is Researcher at the Rosselli Foundation in Turin; M. de Vries is

a Lawyer, Associated Partner at Zenc BV and Senior Researcher at Tilburg University, Til-

burg Institute for Law, Technology, and Society. This paper and the two following ones

have been produced by LAPSI, the EuropeanThematic Network on Legal Aspects of Public

Sector 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).

106 Informatica e diritto /Il quadro giuridico

review intended to explore different policy options in the area and possible

legislative amendments. While in principle the whole area of charges is sub-

ject to scrutiny, the issue for which LAPSI’s contribution is sought is more

limited and is described as follows:

“Possible exceptions to a defaultr ule of chargingonly marginal costs. Cur-

rently public sector bodies can charge the cost of collection, production, re-

production and dissemination, together with a reasonable return on invest-

ment (Art. 6). If the upper limit for charging was lowered to the marginal

costs of reproduction and dissemination of documents, with a possibility for

a limited number of exhaustively spelled out exceptions, what could these

exceptions be (taking into account e.g. the self-f‌inancing obligations of some

public sector bodies, investment on digitising documentsetc. . . )? Whowould

decide in practice on the exceptions (Member States, public sector bodies. . . )?”

Accordingly, the analysis presented here specif‌ically focuses on an hypo-

thetical regime which i) provides that charging is subject to an upper limit

(or “ceiling”), identif‌ied with the marginal costs of reproduction and dissem-

ination of documents; and ii) admits that the default is overridden byspecif‌ic

exceptions. The underlying assumption is that the current rules concerning

charges are amended; and that the current recoverability also of the cost of

“collection” and “production” of the documents, as well as of “a reasonable

return on investment” made in view of the collection, production, repro-

duction and dissemination from charges made by public sector bodies is for

the future admitted only in specif‌ic, exceptional cases.

While the present discussion shall mainly deal with the identif‌ication of

the various options available under the new regime as far as exceptions are

concerned and with the governance level at which decisions on the same

exceptions should be taken, the scrutiny shall extend to the rationaleitself of

this hypothetical new regime, to the extent necessary to clarify the available

options.

2. THE CO NTRO LLI NG PROVIS ION S AN D THE PR INC IPL ES UND ERLY-

ING TH EM

While only one specif‌ic recital of the Directive, No 14, and one specif‌ic

provision, Art. 6, of the same legal instrument directly deal with the rules

concerning the charges for re-use by commercial and non commercial re-

users of public sector information held by public sector bodies, there is a

number of recitals and provisions which directly or indirectly relate to the