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DIRECTIVE OF NOVEMBER 17, 2003 ON THE REUSE OF PUBLIC SECTOR DATA

Directive 2003/98 / EC of the European Parliament and of the Council

of 17 November 2003

regarding the re-use of public sector information

 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and Social Committee (2),

Having regard to the opinion of the Committee of the Regions (3),

acting in accordance with the procedure referred to in Article 251 of the Treaty (4),

considering the following:

(1) The Treaty provides for the establishment of an internal market and the establishment of a system ensuring that competition is not distorted in the internal market. The harmonization of the rules and practices of the Member States in the use of public sector information contributes to the achievement of these objectives.

(2) The development towards the information and knowledge society influences the life of all citizens in the Community, in particular by enabling them to take advantage of new means of accessing and acquiring knowledge. this.

(3) Digital content plays an important role in this development. In recent years, and still today, the production of content has led to rapid job creation, mostly in small, emerging companies.

(4) The public sector collects, produces, reproduces and disseminates a wide range of information in a large number of fields, be it social, economic, geographic, meteorological or tourist information, information on companies, patents or education.

(5) One of the main objectives of the establishment of an internal market is to create the conditions which will allow the development of services at Community level. Public sector information is an important raw material for digital content products and services and will become an increasingly important content resource as wireless content services grow. In this regard, it will also be essential to ensure a wide geographical cross-border coverage. Improving the possibilities for re-using information from the public sector should in particular enable European companies to

(6) The rules and practices of the Member States in the use of public sector information show significant divergences, which hinder the full realization of the economic potential of this essential resource. The traditions of public sector organizations in the use of public sector information have undergone widely divergent developments. This fact should be taken into account. A minimum of harmonization of national rules and practices governing the re-use of public sector documents is therefore necessary in cases where differences between national regulations and practices or the lack of clarity undermine the proper functioning of the internal market and to the satisfactory development of the society of

(7) In addition, in the absence of a minimum of harmonization at Community level, legislative activities at national level, in which a number of Member States have already engaged in order to meet technological challenges, risk becoming ‘lead to even more significant differences. The impact of these uncertainties and legislative differences will increase even further with the rise of the information society, which has already considerably increased the cross-border exploitation of information.

(8) It is important to establish a general framework setting out the conditions for the re-use of public sector documents in order to ensure that these conditions will be fair, proportionate and non-discriminatory. Public sector bodies collect, produce, reproduce and disseminate documents with a view to fulfilling their public service missions. Use of these documents for other reasons constitutes reuse. Measures taken by Member States may go beyond the minimum standards established by this Directive, thus allowing wider reuse.

(9) This Directive does not contain any obligation to allow the re-use of documents. Whether or not to allow reuse is left to the discretion of the Member States or the public sector body concerned. This Directive should apply to documents which are made available for re-use when public sector bodies license, sell, disseminate, exchange or impart information. In order to avoid cross-subsidization, reuse should include subsequent use of documents within the organization even for activities outside its public service remit. Activities outside the public service remit generally include the provision of documents which are produced and invoiced solely on a commercial basis and which compete with other documents on the market. The definition of the term “document” does not cover computer programs. This Directive is based on the access rules in force in the Member States and does not modify national rules on access to documents. It does not apply to cases in which, in accordance with the relevant access rules, citizens or businesses can only obtain documents if they can demonstrate a particular interest. At the community level, Articles 41 (right to good administration) and 42 of the Charter of Fundamental Rights of the European Union recognize the right for any citizen of the Union and for any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for reuse any documents they hold. Public service bodies should promote and encourage the re-use of documents, including official texts of a legislative and administrative nature, in cases where the public service body concerned has the right to authorize their re-use. European Union recognize the right for any citizen of the Union and for any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for reuse any documents they hold. Public service bodies should promote and encourage the re-use of documents, including official texts of a legislative and administrative nature, in cases where the public service body concerned has the right to authorize their re-use. European Union recognize the right for any citizen of the Union and for any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for reuse any documents they hold. Public service bodies should promote and encourage the re-use of documents, including official texts of a legislative and administrative nature, in cases where the public service body concerned has the right to authorize their re-use. Union and for any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for reuse any documents they hold. Public service bodies should promote and encourage the re-use of documents, including official texts of a legislative and administrative nature, in cases where the public service body concerned has the right to authorize their re-use. Union and for any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for reuse any documents they hold. Public service bodies should promote and encourage the re-use of documents, including official texts of a legislative and administrative nature, in cases where the public service body concerned has the right to authorize their re-use. Public sector bodies should be encouraged to make available for reuse any documents they hold. Public service bodies should promote and encourage the re-use of documents, including official texts of a legislative and administrative nature, in cases where the public service body concerned has the right to authorize their re-use. Public sector bodies should be encouraged to make available for reuse any documents they hold. Public service bodies should promote and encourage the re-use of documents, including official texts of a legislative and administrative nature, in cases where the public service body concerned has the right to authorize their re-use.

(10) The definitions of the terms “public sector bodies” and “body governed by public law” are taken from the directives on public contracts [92/50 / EEC (5), 93/36 / EEC (6), 93/37 / EEC (7) and 98/4 / EC (8)]. These definitions do not cover state-owned enterprises.

(11) This Directive introduces a generic definition of the term “document”, which takes into account the development of the information society. It covers any representation of acts, facts or information – and any compilation of these acts, facts or information – whatever their medium (written on paper or stored in electronic form or sound, visual or audiovisual recording), held by public sector bodies. A document held by a public sector body is a document that that body is empowered to authorize for reuse.

(12) The response time to requests for reuse should be reasonable and correspond to the response time applicable to requests for access to documents in accordance with the access rules in force. Reasonable deadlines across the Union will stimulate the creation of new globalized information products and services at pan-European level. After accepting a request for reuse, public sector bodies should make the documents available within a timeframe that allows them to fully exploit their economic potential. This is particularly important for the dynamic content of information (eg traffic information), the economic value of which depends on its immediate availability and regular updating. When

(13) Reuse possibilities can be improved by reducing the need to digitize paper documents or manipulate electronic files to make them mutually compatible. Therefore, public sector bodies should make their documents publicly available in any pre-existing format or language, if possible and where appropriate in electronic form. They should give a favorable reception to requests for extracts from existing documents when the satisfaction of such requests is limited to simple manipulation. They should, however, not be required to provide an extract of a document when it requires a disproportionate effort. In order to facilitate reuse, public sector bodies should make their documents available in a format which, as far as possible and appropriate, is not linked to the use of specific software. Where possible and appropriate, public sector bodies should consider the possibilities for re-use of documents by and for people with disabilities.

(14) Where royalties are levied, the total revenue should not exceed the total cost of collecting, producing, reproducing and distributing the documents, while allowing a satisfactory return on the investment, being on the understanding that, where appropriate, due account must be taken of the self-financing needs of the relevant public sector body. Production covers creation and collection, and dissemination can also include user support. The tariff ceiling is delimited by cost recovery, increased by a satisfactory return on the investment, in accordance with the applicable accounting principles and the appropriate method of calculating the costs of the relevant public sector body, any excessive pricing should be prohibited. The tariff ceiling set by this Directive is without prejudice to the right of Member States or public sector bodies to apply lower tariffs, or even to charge completely free of charge, and Member States should encourage those bodies to submit the documents to prices that do not exceed the marginal costs of reproduction and dissemination.

(15) Ensuring the clarity and public accessibility of the conditions for the re-use of public sector documents is a prerequisite for the development of a Community-wide information market. It is therefore important to clearly inform potential re-users of all the conditions applicable to the re-use of documents. Member States should encourage the creation of directories of available documents, accessible online where appropriate, so as to promote and facilitate requests for reuse. Applicants should be informed of the remedies available to them to challenge decisions and practices affecting them. This is particularly important for SMEs, which may not have the

(16) The publication of all documents generally available which are held by the public sector – not only by the political branch, but also by the judicial branch and the administrative branch – constitutes an essential instrument for developing the right to knowledge, principle fundamental to democracy. This objective is applicable to institutions at all levels, local, national and international.

(17) In some cases re-use of documents will take place without a license being issued. In other cases, a license which will impose conditions for re-use by the licensee will be issued and will deal with such matters as liability, proper use of documents, guarantee of non-modification and indication of the source. If public sector bodies issue licenses for the reuse of documents, the terms of the licenses should be fair and transparent. In this regard, the model licenses available online can also play an important role. Member States should therefore ensure that model licenses are available.

(18) If the competent authority decides to no longer make certain documents available for reuse or to update them, it should make its decision public as soon as possible, if possible in electronic form.

(19) The conditions for reuse should be non-discriminatory for comparable categories of reuse. Thus they should not prevent public sector bodies from exchanging information free of charge as part of their public service missions, while the reuse of these same documents is paying off for other parties. It should also be possible to adopt a tiered pricing policy for commercial and non-commercial reuse.

(20) Public sector bodies should respect the applicable competition rules when defining the principles of the reuse of documents, avoiding as far as possible the conclusion of agreements between themselves and with private partners. exclusivity. However, in the context of providing a service of general economic interest, it may sometimes be necessary to grant an exclusive right for the reuse of certain documents in the public sector. This can happen, for example, if no commercial publisher is willing to publish the information without having this exclusive right.

(21) This Directive should be implemented and applied in full respect of the principles relating to the protection of personal data, in accordance with Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (9).

(22) This Directive does not affect intellectual property rights held by third parties. To avoid any misunderstanding, the terms “intellectual property rights” refer only to copyright and related rights (including sui generis forms of protection). This Directive does not apply to documents covered by industrial property rights, such as patents, registered designs and registered trademarks. This Directive does not affect the existence or ownership of intellectual property rights by public sector bodies, nor does it in any way restrict the exercise of such rights beyond the limits it sets. The obligations imposed by this Directive are not apply only insofar as they are compatible with the provisions of international agreements on the protection of intellectual property rights, in particular the Berne Convention for the Protection of Literary and Artistic Works (“the Berne Convention”) and the Agreement on trade-related aspects of intellectual property rights (“the TRIPS Agreement”). Public sector bodies should, however, exercise these rights in a way that facilitates the reuse of documents. Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Public sector bodies should, however, exercise these rights in a way that facilitates the reuse of documents. Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Public sector bodies should, however, exercise these rights in a way that facilitates the reuse of documents.

(23) Tools which help potential re-users to find documents available for re-use and to know the conditions for re-use can significantly facilitate the cross-border use of public sector documents. Therefore, Member States should ensure that practical arrangements are in place to assist re-users in their search for documents available for re-use. Lists, preferably accessible online, of main documents (documents that are widely reused or likely to be widely reused) and portals linked to lists of decentralized resources are examples of these practical arrangements.

(24) This Directive in no way affects Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in society. information (10) nor Directive 96/9 / EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (11). It sets out the conditions under which public sector bodies can exercise their intellectual property rights in the internal information market when authorizing the reuse of documents.

In accordance with the principle of proportionality as set out in that article, this Directive does not go beyond what is necessary to achieve those objectives. This Directive should make it possible to achieve a minimum of harmonization and, therefore, to avoid new disparities between the Member States in the establishment of the conditions for the re-use of documents in the public sector,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS

First article

Purpose and scope

1. This Directive lays down a minimum set of rules on re-use and practical means to facilitate the re-use of existing documents held by public sector bodies in the Member States.

2. This Directive does not apply:

a) documents the supply of which is an activity which does not fall within the public service remit of the public sector bodies concerned by virtue of the law or other binding rules in force in the Member State or, in the absence of such rules, by virtue of current administrative practice in the Member State concerned;

b) documents for which third parties hold the intellectual property rights;

(c) documents which, in accordance with the access rules in force in the Member States, are not accessible, including for reasons of:

– protection of national security (in other words, state security), defense or public security,

– confidentiality of statistical data or commercial information;

d) documents held by public service broadcasters and their subsidiaries and by other bodies or their subsidiaries for the performance of a public service broadcasting task;

e) documents held by educational and research establishments, and in particular by schools, universities, archives, libraries, research institutes, including, where appropriate, organizations created for the transfer of results of research;

f) documents held by cultural establishments, and in particular by museums, libraries, archives, orchestras, operas, ballets and theaters.

3. This Directive is based on the access rules in force in the Member States and in no way affects them. It does not apply to cases in which, in accordance with the access rules, citizens or businesses must demonstrate a particular interest in obtaining access to documents.

4. This Directive leaves intact and in no way affects the level of protection of individuals with regard to the processing of personal data guaranteed by the provisions of Community and national law and, in particular, in no way modifies the rights and obligations provided for in Directive 95/46 / EC.

5. The obligations imposed by this Directive apply only to the extent that they are compatible with the provisions of international agreements on the protection of intellectual property rights, in particular the Berne Convention and the TRIPS Agreement.

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

1) “public sector bodies” means the State, local authorities, bodies governed by public law and associations formed by one or more of these bodies or by one or more of these bodies governed by public law;

2) “body governed by public law” means any body:

a) created to specifically meet needs of general interest not having an industrial or commercial character, and

b) having legal personality, and

c) whose activity is mainly financed by the State, local authorities or other bodies governed by public law, or the management of which is subject to control by the latter, or the administrative, management or Supervisory Board is made up of members, more than half of whom are appointed by the State, local authorities or other bodies governed by public law;

3) “document”:

a) any content whatever its medium (written on paper or stored in electronic form, sound, visual or audiovisual recording);

b) any part of such content;

4) “reuse” means the use by natural or legal persons of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial objective of the public service mission for which the documents were products. The exchange of documents between public sector bodies for the sole purpose of carrying out their public service mission does not constitute reuse;

5) “personal data” means the data defined in Article 2 (a) of Directive 95/46 / EC.

Article 3

General principle

Member States shall ensure that, where the re-use of documents held by public sector bodies is authorized, those documents can be re-used for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV. Where possible, documents are made available to the public in electronic form.

CHAPTER II REQUESTS FOR RE-USE

Article 4

Requirements for processing reuse requests

1. Public sector bodies shall process requests for reuse and make the document available to the requester for reuse, if possible and appropriate in electronic form, or, if a license is required, present to the applicant. requesting the final license offer within a reasonable period of time corresponding to the response period applicable to requests for access to documents.

2. In cases where there is no time limit or other rules governing the timely availability of documents, public sector bodies shall process the request and provide the document to the requester for consideration. re-use or, if a license is required, present the applicant with the final license offer within a maximum period of twenty working days from receipt of the request. This period may be extended by twenty additional working days for large or complex requests. In such cases, within three weeks of the initial request, the requester is informed that additional time is needed to process the request.

3. In the event of a negative decision, the public sector bodies shall communicate to the applicant the reasons for the refusal based on the applicable provisions of the access system in force in the Member State concerned or on the national provisions adopted in accordance with this Directive, in particular Article 1 (2) (a), (b), and (c), or Article 3. In the event of a negative decision based on Article 1 (2) (b), the sector body public mentions the natural or legal person holding the rights, if known, or, failing that, the licensor from whom he obtained the document in question.

4. Any negative decision shall mention the means of appeal available to the applicant to contest this decision.

5. Public sector bodies covered by Article 1 (2) (d), (e) and (f) need not comply with the requirements of this Article.

CHAPTER III CONDITIONS FOR RE-USE

Article 5

Available formats

1. Public sector bodies shall make their documents available to the public in any pre-existing format or language, where possible and where appropriate in electronic form. There is no obligation on public sector bodies to create or adapt documents to meet demand, or to provide extracts from documents, where this entails disproportionate efforts beyond mere manipulation.

2. On the basis of this Directive, public sector bodies cannot be required to continue producing a certain type of document for reuse by a private or public sector body.

Article 6

Pricing principles

When royalties are levied, the total revenue from providing and authorizing reuse of these materials does not exceed their cost of collection, production, reproduction and dissemination, while allowing for a reasonable return on investment. Tariffs should be cost-based over the appropriate accounting period and calculated in accordance with the accounting principles applicable to the relevant public sector bodies.

Article 7

Transparency

Standard conditions and fees for the re-use of documents held by public sector bodies are set in advance and published, wherever possible and where appropriate, in electronic form. On request, the public sector body indicates the basis of calculation used for the published fee. The relevant public sector body also indicates which factors will be taken into account in the calculation of charges for atypical cases. Public sector bodies ensure that applicants are informed of the remedies available to them to challenge decisions or practices that affect them.

Article 8

Licenses

1. Public sector bodies may allow re-use of documents without conditions or may impose conditions, where appropriate through a license settling relevant issues. These conditions do not unduly limit the possibilities of reuse and are not used to restrict competition.

2. In Member States where licenses are used, Member States shall ensure that model licenses for the re-use of public sector documents, which can be adapted to specific license applications, are offered and usable in electronic form. Member States encourage all public sector bodies to use the model licenses.

Article 9

Practical arrangements

Member States shall ensure that practical arrangements are adopted to facilitate the search for documents available for re-use, such as lists, preferably searchable online, of main documents and portals linked to lists of decentralized resources.

CHAPTER IV NON-DISCRIMINATION AND FAIR TRADE

Article 10

No discrimination

1. Any conditions applicable to the re-use of documents shall be non-discriminatory for comparable categories of re-use.

2. When a public sector body reuses documents in the course of its commercial activities outside its public service mission, the pricing and other conditions applicable to the supply of documents intended for these activities are the same as for other users. .

Article 11

Prohibition of exclusivity agreements

1. The reuse of documents is open to all potential market players, even if one or more of them already operate value-added products based on these documents. Contracts or other agreements concluded between public sector bodies holding documents and third parties do not grant exclusivity rights.

2. However, when a right of exclusivity is necessary for the provision of a service of general interest, the merits of granting this right of exclusivity shall be the subject of regularity and, in any event, every three years, a review. Exclusivity agreements concluded after the entry into force of this Directive shall be transparent and made public.

3. Existing exclusivity agreements which do not fall under the exception provided for in paragraph 2 shall end at the end of the contract or, in any event, by 31 December 2008 at the latest.

CHAPTER V FINAL PROVISIONS

Article 12

Implementation

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 July 2005 at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The modalities of this reference are decided by the Member States.

Article 13

Review

1. The Commission shall review the application of this Directive before 1 July 2008 and communicate to the European Parliament and to the Council the results of this examination as well as any proposals for amending this Directive.

2. The review shall cover in particular the scope and impact of this Directive, including the extent of the increase in the re-use of public sector documents, the effects of the charging principles applied and the re-use of documents. official texts of a legislative and administrative nature, as well as additional possibilities to improve the functioning of the internal market and the development of the European content industry.

Article 14

Coming into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 15

Recipients

This Directive is addressed to the Member States.

Done in Brussels on November 17, 2003.

For the European Parliament

President

P. Cox

For the Council

President

G. Alemanno

(1) OJ C 227 E, 24.9.2002, p. 382.

(2) OJ C 85, 8.4.2003, p. 25.

(3) OJ C 73, 26.3.2003, p. 38.

(4) Opinion of the European Parliament of 12 February 2003 (not yet published in the Official Journal), Council common position of 26 May 2003 (OJ C 159 E, 8.7.2003, p. 1), and position of the European Parliament of 25 September 2003 (not yet published in the Official Journal). Council decision of October 27, 2003.

(5) OJ L 209, 24.7.1992, p. 1. Directive as last amended by Commission Directive 2001/78 / EC (OJ L 285, 29.10.2001, p. 1).

(6) OJ L 199, 9.8.1993, p. 1. Directive as last amended by Commission Directive 2001/78 / EC.

(7) OJ L 199, 9.8.1993, p. 54. Directive as last amended by Commission Directive 2001/78 / EC.

(8) OJ L 101, 1.4.1998, p. 1.

(9) OJ L 281, 23.11.1995, p. 31.

(10) OJ L 167, 22.6.2001, p. 10.

(11) OJ L 77, 27.3.1996, p. 20.

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