[open-government] Adapted PSI to be reviewed until 7.3.!!!

Tue Mar 6 15:24:41 UTC 2012

Dear all

Apparently this document was prepared by the EU Danish presidency but it is only work in progress and it is not clear which of its contents, if any, would get implemented. The final document will track changes back to the original, not this one.

However, we have been advised to raise any concerns we may have, just in case. From initial reading, it appears to me that they are clawing back, not just on the 2011 proposed review but possibly on the original regulations, by allowing exclusive arrangements.  

It would be good to nip it in the bud, and I would appreciate help from one of the many PSI legal specialists in this list confirming the concerns raised below.

These are some of the main changes from the linked PDF:

--------------------------------------------------------------------------------------------

PREAMBLE/ RECITALS

(7) ... clear obligation for Member States to make all generally (DELETED: available) (ADDED: accessible) documents re-usable.

NOTE: can anyone explain the fine detail of "generally accessible"?  

-----

(14) Competition rules should be respected when establishing the principles for re-use of
documents avoiding as far as possible exclusive agreements between public sector
bodies and private partners. However, in order to provide a service in the public
interest, an exclusive right to re-use specific public sector documents may sometimes
be necessary. This may be the case if no commercial publisher would publish the
information or if digitisation of public cultural resources would not be possible without
a public-private partnership concluded between a library, museum or archive and a
commercial partner without such an exclusive right. A period of preferential
commercial exploitation of the digitised material may be necessary in order to give the
private partner the possibility to recoup its investment. This period should be limited
in time and as short as possible, in order to respect the principle that public domain
material should stay in the public domain once it is digitised. The period of preferential
use should not exceed 7 years. In addition, any public private partnership for
digitisation of cultural resources shall grant the partner cultural institution full rights
with respect to the post-termination use of digitised objects.

NOTE: The regulation of PPP cultural digitisation agreements was brought up in a EU report (The New Renaissance), and it could be a progressive step. However, bringing in some criteria for "as short as possible" -- such as cost recovery plus reasonable profit with a maximum of 7 years -- would have been better, as in reality 7 years will likely become the norm instead of the maximum.  

The worrying aspect about this paragraph is however that it appears to allow exclusive agreements for ANY public sector bodies, not just MLAs. This would be a step backwards.

-----

(18) DELETED: The Commission should assist the Member States in implementing the Directive in a
consistent way by giving guidance, particularly on charging and calculation of costs, on
recommended licensing conditions and on formats, after consulting interested parties.

NOTE: we were told that a combination of hard and soft regulation would be the best way to deliver EU level consistency, and that hardwiring licensing, formats and costing would be a bad idea, but it now seems to disappear altogether.

-----------------------------------------------

AMENDMENTS TO ARTICLES

Article 3

Documents for which libraries (including university libraries), museums and archives have intellectual property rights,  
shall be re-usable for
commercial or non-commercial purposes in accordance with the conditions set out in
Chapters III and IV [ADDED: where the rightholder re-uses them or allows their re-use.]

NOTE: Unnecessarily leaves out Public Domain works, and narrows the scope to currently re-used works
-----------

 Article 5 (Available formats):

(1)

[ DELETED: In paragraph 1, the words ‘through electronic means’ are replaced by ‘in
machine-readable format and together with their metadata.’.]

[ ADDED:Public sector bodies shall make their documents available in any pre-existing
format or language and, where possible and appropriate, in machine-readable
format together with their metadata. This shall not imply an obligation for
public sector bodies to create or adapt documents in order to comply with the
request, nor shall it imply an obligation to provide extracts from documents
where this would involve disproportionate effort, going beyond a simple
operation.]

NOTE: watering down obligations?  

-----------

Article 6 (Charges)

[DELETED :  

‘2. In exceptional cases, in particular where public sector bodies generate a  
substantial part of their operating costs relating to the performance of their
public service tasks from the exploitation of their intellectual property rights,
public sector bodies may be allowed to charge for the re-use of documents over
and above the marginal costs, according to objective, transparent and verifiable
criteria, provided this is in the public interest and subject to the approval of the
independent authority referred to in Article 4(4), and without prejudice to
paragraphs 3 and 4 of this Article.’

‘3. Notwithstanding paragraphs 1 and 2, libraries (including university
libraries), museums and archives may charge over and above the marginal costs
for the re-use of documents they hold.’

]

[ADDED:  

2.

Paragraph 1 shall not apply to the following:

(a) Public sector bodies that are required to generate revenue to cover a
substantial part of their costs relating to the performance of their public
tasks,

(b) Libraries (including university libraries), museums and archives.

]

NOTE: the amemdment seems to substantially weaken the provisions on charging by removing:

- public interest case
- objective, criteria
- approval by independent authority

---------------

Article 9 (Practical arrangements)

Amendment removes the word "online" that accompanied machine readable.

-----------------

Article 11 (Exclusivity arrangements)

The proposed amendments to the original review appear to confirm that exclusivity deals are allowed, as long as they are in the public interest, reviewed every 3 years and are transparent. Deals for MLAs are treated separately and still follow the proposed changes from last year.

-------------------

Article 13 (Review)

It appears watered down again by bringing reviews every 5 years instead of 3, and reports every 2 instead of yearly.

--  
Javier Ruiz
javier at openrightsgroup.org
+44(0)7877 911 412
@javierruiz

On Tuesday, 6 March 2012 at 09:29, Thomas Thurner wrote:

> e
>  
> ----- Ursprüngliche Mail -----
> Von: "Thomas Thurner" <t.thurner at semantic-web.at (http://web.at)>
> An: open-government at lists.okfn.org (mailto:open-government at lists.okfn.org)
> Gesendet: Dienstag, 6. März 2012 10:25:05
> Betreff: Adapted PSI to be reviewed until 7.3.!!!
>  
> Dear Partners,
>  
> dated with march 5th EC-Presidency has sent out a compromise proposal, including some of the inputs brought in by members delegates in early February. Giving delegeations only some hours time to respond on this proposal, presidency office want to discuss this on Telecom Working Party on march 8th in Brussels.
>  
> This is a urgent call for analysis and statements on this (posted on the list and/or direct to the commission. Find here the mentioned working docment 2011/0430(COD) - DS1166/12: https://docs.google.com/open?id=0B_4OlkH5A7O7OVphZENlaHFUa2E5RnRmWEN2TkFMQQ
>  
> LGT
>  
>  
>  
>  
> Thomas Thurner
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> Thomas Thurner
> Head of Transfer
> Semantic Web Company GmbH
> Mariahilfer Straße 70 / 8
> A - 1070 Vienna, Austria
> Tel +43 1 402 12 35 - 31
> Fax +43 1 402 12 35 - 22
> Mobile +43 664 88679980
>  
> http://www.semantic-web.at
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