44 Amendments of Jana TOOM related to 2018/0111(COD)
Amendment 14 #
Proposal for a directive
Title 1
Title 1
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on Open Data and the re-use of public sector information (recast)
Amendment 15 #
Proposal for a directive
Recital 4
Recital 4
(4) The substantive changes introduced to the legal text so as to fully exploit the potential of public sector information for the European economy and society focus on the following areas: the provision of real-time access to dynamic data via adequate technical means, increasing the supply of high-value public data for re-use, including from public undertakings, research performing organisations and research funding organisations, tackling the emergence of new forms of exclusive arrangements, the use of exceptions to the principle of charging the marginal cost and the relationship between this Directive and certain related legal instruments, including Directive 96/9/EC31 and, Directive 2003/4/EC31a, Directive 2007/2/EC of the European Parliament and of the Council32 . and Regulation (EU) 2016/67932a. _________________ 31 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20). 31a OJ L 41, 14.2.2003, p.26. 32 Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ L 108, 25.4.2007, p.1). 32a OJ L 119, 4.5.2016, p.1.
Amendment 17 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) The access to information is a fundamental right. The Charter of Fundamental Rights of the European Union (the ‘Charter’) provides that everyone has the right to freedom of expression, including the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Amendment 20 #
Proposal for a directive
Recital 6
Recital 6
(6) The public sector in the Member States collects, produces, reproduces and disseminates a wide range of information in many areas of activity, such as social, political, economic, geographical, environmental, weather, tourist, business, patent and educational information. Documents produced by public sector bodies of executive, legislative or judicial nature constitute a vast, diverse and valuable pool of resources that can benefit the knowledge economy.
Amendment 27 #
Proposal for a directive
Recital 11
Recital 11
(11) Allowing access to and re-use of documents held by a public sector body adds value for the re-users, for the end users and for society in general and in many cases for the public body itself, by promoting transparency and accountability and providing feedback from re-users and end users which allows the public sector body concerned to improve the quality of the information collected.
Amendment 29 #
Proposal for a directive
Recital 12
Recital 12
(12) There are considerable differences in the rules and practices in the Member States relating to the exploitation of public sector information resources, which constitute barriers to bringing out the full economic potential of this key document resource. Practice in public sector bodies in exploiting public sector information continues to vary among Member States. That should be taken into account. Minimum harmonisation of national rules and practices on theaccess to and re-use of public sector documents should therefore be undertaken, in cases where the differences in national regulations and practices or the absence of clarity hinder the smooth functioning of the internal market and the proper development of the information society in the Community.
Amendment 34 #
Proposal for a directive
Recital 16
Recital 16
(16) A general framework for the conditions governing access to and re-use of public sector documents is needed in order to ensure fair, proportionate and non- discriminatory conditions for the re-use of such informationdocuments. Public sector bodies collect, produce, reproduce and disseminate documents to fulfil their public tasks. Use of such documents for other reasons constitutes a re-use. Member States' policies can go beyond the minimum standards established in this Directive, thus allowing for more extensive re-use.
Amendment 37 #
Proposal for a directive
Recital new(18
Recital new(18
new(18) This Directive should apply to documents that are made accessivailable for re-use when public sector bodies commission the production of, or license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re- use should include further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market.
Amendment 40 #
Proposal for a directive
Recital 20
Recital 20
(20) The Member States often entrust the provision of services in the general interest with entities outside of the public sector while maintaining a high degree of control over such entities. At the same time, the provisions of the Directive 2003/98/EC apply only to documents held by public sector bodies, while excluding public undertakings from its scope. This leads to a poor. This Directive should ensure availability for re-use of documents produced in the performance of services in the general interest in a number of areas, notably in the utility sectors. It also greatly reducesThis should unlock the potential for the creation of cross-border services based on documents held by public undertakings that provide services in the general interest.
Amendment 41 #
Proposal for a directive
Recital 22
Recital 22
Amendment 44 #
(26) This Directive lays down a generic definition of the term ‘document’. It covers any representation of acts, facts or information — and any compilation of such acts, facts or information — whatever its medium (written on paper, or stored in electronic form or as a sound, visual or audiovisual recording). The definition of ‘document’ is not intended to cover computer programmeMember States should guarantee transparency as regards the methodologies used in measurement, analysis, sampling, and pre-treatment of samples in compiling the documents.
Amendment 45 #
Proposal for a directive
Recital 27
Recital 27
(27) Public sector bodies are increasingly making their documents available for access and re-use in a proactive manner, by ensuring online discoverfindability and actual availability of both metadata and the underlying content. Documents should also be made available for re-use following a request lodged by a re-user. In those cases, the time limit for replying to requests for re-use should be reasonablMember States should enable applicants to request documents for access and re-use without having to state and in accordance with the equivalent time for requests to access the document under the relevant access regimes. Public undertakings, educational establishments, research performing organisations and research funding organisations should however be exempt fromterest. Member States should guarantee that practical arrangements are defined for ensuring that the access and re-use of public-sector information can be exercised effectively, such as the designation of information officers, the establishment and maintenance of facilities for the examination of documents, registers or lists of documents held by public sector bodies or information points, with clear indications of where such documents can be found. The time limit for replying to requests for re-use should be reasonable and in accordance with the equivalent time for requests to access the document under thise requirementlevant access regimes. Reasonable time limits throughout the Union will stimulate the creation of new aggregated information products and services at pan-European level. This is particularly important for dynamic data (including traffic data, satellite data, weather data), the economic value of which depends on the immediate availability of the information and of regular updates. Dynamic data should therefore be made available immediately after collection, in real-time and without delay via an Application Programming Interface so as to facilitate the development of internet, mobile and cloud applications based on such data. Whenever this is not possible due to technical or financial constraints, public sector bodies should make the documents available in a timeframe that allows their full economic potential to be exploited. Should a licence be used, the timely availability of documents may be a part of the terms of the licence.
Amendment 48 #
Proposal for a directive
Recital 32
Recital 32
(32) Charges for the access to and re- use of documents constitute an important market entry barrier for start-ups and SMEs. Documents should therefore be made available for access to and re-use without charges and,, or where charges are necessary, they should in principle be limited to the marginal costs. In exceptional cases, the necessity of not hindering the normal running of 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 should be taken into consideration. The role of public undertakings in a competitive economic environment should also be acknowledged. In such cases, public sector bodies and public undertakings should therefore be able to charge above marginal costs. Those charges should be set according to objective, transparent and verifiable criteria and the total income from supplying and allowing re-use of documents should not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. Where applicable, the costs of anonymisation of personal data or of commercially sensitive information should also be included in the eligible cost. The requirement to generate revenue to cover a substantial part of the public sector bodies’ costs relating to the performance of their public tasks or the scope of the services of general interest entrusted with public undertakings does not have to be a legal requirement and may stem, for example, from administrative practices in Member States. Such a requirement should be regularly reviewed by the Member States.
Amendment 51 #
Proposal for a directive
Recital 36
Recital 36
(36) Ensuring that the conditions for access to and re- use of public sector documents are clear and publicly available is a pre-condition for the development of a Union-wide information market. Therefore all applicable conditions for the access to and re-use of the documents should be made clear to the potential re-users. Member States should encourage the creation of indices accessible on line, where appropriate, of available documents so as to promote and facilitate requests for re-use. Applicants for access to and re-use of documents held by entities other than public undertakings, educational establishments, research performing organisations and research funding organisations should be informed of available means of redress relating to decisions or practices affecting them. This will be particularly important for SMEs which may not be familiar with interactions with public sector bodies from other Member States and corresponding means of redress.
Amendment 54 #
Proposal for a directive
Recital 37
Recital 37
(37) The means of redress should include the possibility of review by an impartial review body. That body could be an already existing national authority, such as the national competition authority, the national access to documents authority or a national judicial authority. That body should be organised in accordance with the constitutional and legal systems of Member States and should not prejudge any means of redress otherwise available to applicants for access to and re-use. It should however be distinct from the Member State mechanism laying down the criteria for charging above marginal costs. The means of redress should include the possibility of review of negative decisions but also of decisions which, although permitting re- use, could still affect applicants on other grounds, notably by the charging rules applied. The review process should be swift, in accordance with the needs of a rapidly changing market.
Amendment 58 #
Proposal for a directive
Recital 39
Recital 39
(39) In some cases thMember States should ensure re- use of documents will take place without a licence being agreed. In other cases a licence will be issuedconditions. Where necessary and justified by a public interest objective, it should be possible for Member States to imposinge conditions on t, whe re-use by the appropriate through a licenseece, dealing with issues such as liability, the proper use of documents, guaranteeing non-alteration and the acknowledgement of source. If public sector bodies license documents for re-use, the licence conditions should be fair and transparent. Standard licences that are available , while guaranteeing that the least restrictive conditions or licensing terms apply, including the possibility of dedicating documents to the public domain. If public sector bodies license documents for re-use, the licence conditions should be fair and transparent. Member States should in particular evaluate the compatibility of these obligations with the principle of proportionaline may also play an important role inty to ensure that such licences or conditions do not unnecessarily restrict possibilities for re- use or competition. Member States should also encourage the use of standard open licences for thise respect. Therefore Member States should provide for the availability of standard licenc-use of public sector documents and ensure that such licences are available in digital format and can be processed electronically. Open licences available online, which grant wider re-use rights without technological, financial or geographical limitations and relying on open data formats, should play an important role and should eventually become common practice across the Union. The Commission should provide guidance on recommended standard licences and licensing approaches.
Amendment 68 #
Proposal for a directive
Recital 52
Recital 52
(52) Tools that help potential re-users to find documents available for access to and re-use and the conditions for re-use can facilitate considerably the cross-border use of public sector documents. Member States should therefore ensure that practical arrangements are in place that help re-users in their search for documents available for re-use. ASuch practical arrangements can include assets lists, accessible preferably online, of main documents (documents that are extensively re-used or that have the potential to be extensively re-used), and portal sites that are linked to decentralised assets lists are examples of such practical arrangements.
Amendment 69 #
Proposal for a directive
Recital 53
Recital 53
(53) This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council39 and the provisions relating to copyright and its enforcement of Directive 96/9/EC of the European Parliament and of the Council40 . It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents. In particular, where public sector bodies areshould not qualify as holders of the right provided for in Article 7(1) of Directive 96/9/EC, they should not exercise it in order to prevent or restrict the re-use of data contained in databases. _________________ 39 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10). 40 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20).
Amendment 76 #
Proposal for a directive
Recital 62
Recital 62
(62) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the right to privacy (Article 7), the protection of personal data (Article 8), the freedom of expression and information (Article 11), the right to property (Article 17) and the integration of persons with disabilities (Article 26). Nothing in this Directive should be interpreted or implemented in a manner that is inconsistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Amendment 77 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1 a. This Directive aims at establishing a regulatory framework governing the right to access to and re-use of public sector information in order to set out basic terms and practical arrangements for its exercise, as well as to promote the use of open data and stimulate innovation in products and services.
Amendment 78 #
Proposal for a directive
Article 1 – paragraph 2 – point c
Article 1 – paragraph 2 – point c
(c) documents for which third parties hold intellectual property rights that would prohibit or restrict re-use;
Amendment 80 #
Proposal for a directive
Article 1 – paragraph 2 – point i
Article 1 – paragraph 2 – point i
Amendment 81 #
Proposal for a directive
Article 1 – paragraph 3 a (new)
Article 1 – paragraph 3 a (new)
3 a. This Directive is without prejudice to Regulation (EU) 2016/679 and it does not affect the level of protection of individuals with regard to the processing of personal data in accordance with Union law on personal data protection.
Amendment 82 #
Proposal for a directive
Article 1 – paragraph 5
Article 1 – paragraph 5
5. TPublic sector bodies and public undertakings shall not be able to hold the right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent or restrict the re-use of documents pursuant to this Directive.
Amendment 83 #
Proposal for a directive
Article 1 – paragraph 6
Article 1 – paragraph 6
6. This Directive governs the access to and re-use of existing documents held by public sector bodies ofand public undertakings in the Member States, including documents to which Directive 2007/2/EC of the European Parliament and of the Council46 applies. _________________ 46 Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ L 108, 25.4.2007, p. 1).
Amendment 84 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
1. ‘public sector body’ means the State, regional or local authorities, bodies governed by public law and associations formed by one or several such authorities or one or several such bodies governed by public law, as well as public undertakings;
Amendment 85 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
3. 'public undertaking' means any undertaking over which the public sector bodies may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it, as well as private companies that perform a service in the general interest under contract with a Member State, regional or local authority, public sector body or public undertaking;
Amendment 86 #
Proposal for a directive
Article 2 – paragraph 1 – point 14 a (new)
Article 2 – paragraph 1 – point 14 a (new)
14 a. ‘personal data' means data as referred to in Article 4(1) of Regulation (EU) 2016/679.
Amendment 88 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Subject to paragraph 2 Member States shall ensure that documents to which this Directive applies in accordance with Article 1 shall be given access to and be re-usable for commercial or non- commercial purposes in accordance with the conditions set out in Chapters III and IV.
Amendment 89 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. For documents in which libraries, including university libraries, museums and archives hold intellectual property rights and for documents held by public undertakings , Member States shall ensure that, where the access to and re-use of such documents is allowed, these documents shall be given access to and be re- usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV.
Amendment 90 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. Member States shall ensure that documents falling within the scope of this Directive are produced and made available for re-use according to the principle of "open by design and by default".
Amendment 91 #
Proposal for a directive
Chapter 2 – title
Chapter 2 – title
ACCESSTO DOCUMENTS AND REQUESTS FOR RE-USE
Amendment 92 #
Proposal for a directive
Article 4 – title
Article 4 – title
Requirements applicable to the processing of requests for access to documents and re-use
Amendment 94 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Public sector bodies shall, through electronic means where possible and appropriate, process requests for access to documents or for their re-use and shall make the document available for re- use to the applicant or, if a licence is needed for re-use, finalise the licence offer to the applicant within a reasonable time that is consistent with the time-frames laid down for the processing of requests for access to documents.
Amendment 96 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Where no time limits or other rules regulating the timely provision of documents have been established, public sector bodies shall process the request and shall deliver the documents for re-use to the applicant or, if a licence is needed for re-use, finalise the licence offer to the applicant as soon as possible or, at the latest, within a timeframe of not more than 20 working days after its receipt. This timeframe may be extended by another 20 working days for extensive or complex requests. In such cases the applicant shall be notified as soon as possible, and in any case within three weeks after the initial request that more time is needed to process it and of the reasons for it.
Amendment 97 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. In the event of a negative decision, the public sector bodies shall communicate the grounds for refusalwithin 20 working days the reasons for refusing, in full or in part, access to or re- use of a document in the form or format requested, to the applicant on the basis of the relevant provisions of the access regime in that Member State or of the national provisions adopted pursuant to this Directive, in particular points (a) to (g) of Article 1(2) or Article 3. Where a negative decision is based on point (c) of Article 1(2), the public sector body shall include a reference to the natural or legal person who is the rightholder, where known, or alternatively to the licensor from which the public sector body has obtained the relevant material. Libraries, including university libraries, museums and archives shall not be required to include such a reference.
Amendment 98 #
Proposal for a directive
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3 a. Member States shall draw up a publicly accessible list of criteria on the basis of which the body concerned may decide how to handle requests.
Amendment 99 #
Proposal for a directive
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4 a. For the purposes of this Article, Member States shall ensure that: (a) support is granted in seeking access to documents; (b) lists of public sector bodies are publicly accessible; and (c) practical arrangements are defined for ensuring that the right of access to documents and their re-use of public- sector information can be exercised effectively, such as: i. the designation of information officers, ii. the establishment and maintenance of facilities for the examination of the documents required, iii. registers or list of documents held by public sector bodies or information points, with clear indications of where such documents can be found. (d) public sector bodies inform the public adequately of the rights they enjoy on the basis of this Directive and as a result of existing access to information rules, laid down at national or at Union level, and to an appropriate extent provide information, guidance and advice to this end.
Amendment 100 #
Proposal for a directive
Article 4 – paragraph 5 – point a
Article 4 – paragraph 5 – point a
Amendment 102 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1 (new)
Article 5 – paragraph 1 – subparagraph 1 (new)
Member States shall make all reasonable efforts to ensure that documents to which this Directive applies are up to date, accurate and comparable.
Amendment 107 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. RAccess to and re-use of documents shall be free of charge or limited to the marginal costs incurred for their reproduction, provision and dissemination, and – where applicable – anonymisation of personal data and measures taken to protect commercially confidential information.
Amendment 109 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
Amendment 110 #
Proposal for a directive
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
Amendment 117 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. IfWhere documents are re-used by a public sector bodyies or public undertakings as input for its commercial activities which fall outside the scope of itstheir public tasks, the same charges and other conditions shall apply to the supply of the documents for those activities as apply to other users.