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The 2019 PSI – Open Data Directive

A checklist for IP, Research Data and Open Science

What is the PSI?

PSI Stands for Public Sector Information and has been a directive since 2003 in order to regulate use of public sector information and to encourage as much public sector to be openly available. In 2017 it changed to the Open Data Directive which provides a common legal framework for government held data.

The 2019 PSI – Open Data Directive represents the latest major upgrade of the PSI legislation in the EU. It amends previous PSI directives which first introduced a regulatory framework for Public Sector Information establishing the principle of reuse by default. With the 2019 revision Public Sector Bodies covered by the Directive can now benefit from a more comprehensive set of rules that regulate the reuse of data and information that they hold. The PSI – Open Data Directive poses an even stronger requirement on reuse by default, expands the type of PSB covered and, very importantly for Open Science, establishes the principle that research data resulting from publicly funded research must be Open Access by default.

I. Overview

The PSI – Open Data Directive (Directive EU 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information), which entered into force on 16 July 2019 and gives Member States 24 months to transpose it into domestic legislation, constitutes the latest major upgrade of the PSI legislation in the EU. It amends Directives 2003/98/EC and 2013/37/EU which represented respectively the first substantial intervention by the EU into the field of Public Sector Information and its significant 10-year update which further reinforced the principle of reuse by default. With the 2019 revision, which is based on principles such as transparency and fair competition in the internal market, Public Sector Bodies (PSB) covered by the Directive can now benefit from a more comprehensive legal framework that regulates the reuse of data and information that they hold. The PSI – Open Data Directive poses an even stronger requirement of reuse by default, expands the type of PSB covered and, very importantly for Open Science, establishes the principle that research data resulting from publicly funded research must be open access by default.

There are a number of specific provisions that may impact, in certain cases significantly, Open Science practices in the EU once transposed into domestic law by Member States (MS). The following is a list of the most relevant.

1. The scope of the directive covers documents held by Public Sector Bodies (PSB) in Member States at national, regional and local levels

This includes national governments, ministries, state agencies and municipalities, as well as organisations funded mostly by or under the control of public authorities (e.g. meteorological institutes). Since the 2013 update, museums, libraries, including university libraries and archives are likewise included, although special rules apply. With the 2019 reform the scope has been further expanded to certain public undertakings under specific rules.

2. The Directive regulates the reuse of documents held by PSB

Documents are defined as any representation of acts, facts or information — and any compilation of such acts, facts or information — whatever its medium (paper, or electronic form or as a sound, visual or audiovisual recording). The definition of ‘document’ is not intended to cover computer programmes, however, Member States (MS) may extend the application of this Directive to computer programmes

3. PSI legislation regulates the reuse of documents held by PSB and establishes the rule that such documents shall be reusable for commercial and non commercial purposes (Art. 1)

It should be noted that access to information, i.e. the principal way in which the covered type of information is made available, is not directly regulated by PSI, which nevertheless identifies The Charter of Fundamental Rights of the European Union (see Recital 5 PSI-OD) as the legal basis for national access to information rules and also establishes that MS shall encourage public sector bodies and public undertakings to produce and make available documents falling within the scope of the Directive in accordance with the principle of ‘open by design and by default’.

Access to information legislation is regulated at the MS level. EU institutions have their own procedures to access their documents. Interestingly, Art. 1(6) 2019 PSI – Open Data Directive establishes that the Sui Generis Database Right (SGDR) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent the re-use of documents or to restrict re-use beyond the limits set by the 2019 Directive.

4. Research data resulting from public funding

Member States will be asked to develop policies for open access to publicly funded research data. This is perhaps the most important innovation brought by the 2019 PSI-OD amendment for Open Science. It implies a mandatory open access status for all research data produced with public funding (Recital 27).

5. Provision on “high value datasets”

Another important aspect is the provision on “high value datasets” defined as documents the re-use of which is associated with important benefits for the society and economy, which will be governed by a separate set of rules. Thematically, these datasets identify geospatial, earth observation and environment, meteorological, statistics, companies and company ownership, and mobility as high value areas. The EC will identify the relevant dataset in 2021.

6. Transparency requirements

Stronger transparency requirements for public–private agreements involving public sector information, avoiding exclusive arrangements.

II. Focus on Research Data and Open Science

In particular, regarding point 4) above, it should be noted how the 2019 Directive clarifies that under the national open access policies, publicly funded research data should be made open as the default option. However, this “open by default” rule should apply only to research data that have already been made publicly available by researchers, research performing organisations or research funding organisations through an institutional or subject-based repository. This should not impose extra costs for the retrieval of the datasets or require additional curation of data.

The Directive also clarifies that MS may extend the application of the Directive to research data made publicly available through other data infrastructures than repositories, through open access publications, as an attached file to an article, a data paper or a paper in a data journal. Documents other than research data (e.g. scholarly articles, publications, etc) should continue to be exempt from the scope of this Directive.

Additionally, concerns in relation to privacy, protection of personal data, confidentiality, national security, legitimate commercial interests, such as trade secrets, and to intellectual property rights of third parties should be duly taken into account, according to the principle ‘as open as possible, as closed as necessary’. Moreover, research data which are excluded from access on grounds of national security, defence or public security should not be covered by this Directive (see Recital 28).

III. The importance of national implementations and the development of national open access policies

These are very important provisions in order to achieve one of the most important goals of Open Science, namely the accessibility, reusability and verifiability of scientific results. Access to the data that brought to certain result is a key element for the achievement of Open Science. The Directive is quite clear in terms of the basic rules, however, these rules will need to be implemented by MS in what the Directive calls national open access policies.

It is fundamental that these national open access policies follow a common and coordinated approach in order to avoid potential fragmentation at the MS level. Space for intervention at the MS level could be found in areas such as:

  • The inclusion of software in the definition of documents of PSBs covered by the Directive;
  • The extension to other data infrastructures such as open access publications, as an attached file to an article, a data paper or a paper in a data journal as the type of first publication that will trigger the open by default rule;
  • National OA policies should contain a clear identification of a licence or licence type in order to avoid potential issues connected with licence identification, compatibility and maintenance;
  • In this sense EC Decision of 22/02/2019 “adopting Creative Commons as an open licence under the European Commission’s reuse policy” C(2019) 1655 final, which establishes CC BY 4.0 as the European Commission default licence for reuse policy and CC0 for raw data, metadata or other documents of comparable nature, while not binding for MS, indicates a clear and strong orientation for the convergence towards a common standard licence as the default option. MS should be encouraged to follow this common pattern for the generality of cases and only diverge when special circumstances justify a different approach.

Factsheet

DOI

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