This Communication reviews the application of Directive 2003/98/EC concerning the reuse of public sector information.

The PSI Directive regulates non-discrimination, charging, exclusive arrangements, transparency, licensing and practical tools to make it easy to find and re-use public documents.

The value of the EU PSI market is estimated at EUR 27 billion, which is four times the EU market for mobile roaming services.

The PSI Directive was implemented by many MS with considerable delay. The prohibition of exclusive arrangements only became fully applicable as from 1.1.2009. Therefore, the Directive in its present form has not yet had its full impact.

For this reason the Commission does not intend to propose amendments to the Directive at this point . The Commission will carry out a further review at the latest in 2012 when more evidence on the impact, effects and application of the Directive should be available and will communicate the results to the European Parliament and to the Council. Legislative amendments will be considered at that stage if the potential of re-use is still being hampered.

In the meantime, there is much room for improvement in the way Member States deal with their PSI resources in the market .

The Commission draws attention to the following areas in particular:

The Commission discusses the following points in the paper:

full implementation and application of the PSI Directive . The Commission has opened 18 infringement cases against Member States and the European Court of Justice has delivered 4 judgments for failure to implement the Directive. Member States have also implemented the Directive in different ways; terminating exclusive arrangements . The Commission notes evidence of exclusive arrangements still in force in Member States. It will scrutinise observance of this obligation and launch an investigation on the extent of such arrangements in 2009; charging: the report notes that continuous analysis of the economic case for marginal costs is a Commission priority for the future; facilitating re-use : public sector bodies should ensure that documents that are re-usable (i.e. accessible for any use beyond the initial public tasks for which they were originally produced) can be re-used for commercial or non-commercial purposes; ensuring fair competition between public sector bodies and re-users : in some cases the line between the public tasks and market activities of public sector bodies is not clearly demarcated. There are also cases where public tasks are defined in such a way that they cover a very wide range of activities and occupy almost the whole market of added-value PSI services. These situations can easily lead to cross-subsidies, where a public sector body uses its “raw” information for further value-added services under more favourable conditions than those offered to competitors. It is very difficult for private re-users to compete with public sector bodies in such circumstances; conflict resolution : the Commission encourages Member States to set up PSI complaint mechanisms.

The Commission concludes that progress and implementation of the Directive is uneven . Barriers include attempts by public sector bodies to maximise cost recovery, as opposed to benefits for the wider economy, competition between the public and the private sector, practical issues hindering re-use, such as the lack of information on available PSI, and the mindset of public sector bodies failing to realise the economic potential.

Member States need to focus their efforts now on: (i) full and correct implementation of the Directive, (ii) terminating exclusive arrangements, (iii) applying licensing and charging models that facilitate the availability and re-use of PSI, ensuring equal conditions for public bodies re-using their own documents and other re-users, (iv) promoting quick and inexpensive conflict resolution mechanisms.

This Commission Staff Working Paper concerns the re-use of Public Sector Information (review of Directive 2003/98/EC).

The aim of the working paper is to present facts, evidence and examples relating to the re-use of PSI that are relevant to the issues dealt with in the Communication.

The PSI Directive provides for minimum rules applicable in all the Member States on the re-use of the information of public sector bodies and on their behaviour in the information market. It was adopted in order to address the many problems faced by private companies when dealing with public sector information holders: high charges, long response times, unfair competition, exclusive arrangements and the general non-availability of information for re-use.

Implementation : Member States have taken three different approaches to implementing the Directive: (i) eleven have adopted specific implementing legislation regarding the reuse of PSI.; (ii) four have used a combination of new measures specifically addressing re-use and legislation predating the Directive; (iii) eight have adapted their legislative framework for access to documents to include re-use of PSI. The remaining Member States (4) have notified the Commission only of measures predating the Directive, with no specific re-use provisions.

Following conformity checks of national transposition measures and/or complaints, the Commission approached the national authorities of a number of Member States on nonconformity issues. In three cases the Commission decided to initiate infringement proceedings for incorrect and incomplete transposition (in particular, concerning charging, non-discrimination, prohibition of exclusive agreements and procedural requirements).

Scope and impact of the Directive : to measure the impact of the re-use of PSI, an assessment was carried out on behalf of the Commission . This focused on three main PSI sectors: geographical and meteorological information, and legal and administrative information. The assessment indicates that:

the Directive has had its strongest impact in the sector of geographical information (GI). Since 2002, re-use requests have increased by 250% on average and the download volume has grown simultaneously by approximately 350%. Moreover, a large majority (79%) of private re-users of GI would like to have access to more public GI but high pricing and restrictive licensing are preventing them from doing so; the Directive has had a considerable impact in the sector of legal and administrative information . The market for legal and administrative information has been growing, on average, by 40% since 2002. However, the survey also highlights the continuing dissatisfaction expressed by re-users about public authorities (the lack of information on what legal and administrative information is accessible and available for re-use); in the sector of meteorological information , the Directive has had limited impact so far. Meteorological re-users complain basically about pricing, transparency and licensing conditions, and report that discriminatory practices are particularly prevalent in this sector.

Moreover, the Commission has to analyse whether cultural establishments, education and research organisations and public service broadcasters, currently excluded from the scope, ought to be covered by the Directive:

cultural sector : the advantages of including cultural heritage institutions within the scope of the Directive are currently difficult to assess and require further investigation over time. The possible implications to this sector (need for major administrative activity to clear third-party or unknown rights and heavy processing costs) should not be allowed in the longer term to outweigh the possible advantages to the economy, industry and society; educational institutions : it is widely felt by the research community that publicly funded research should be widely available and useable to all, to maximise its potential; public service broadcasting institutions : given that the Directive does not apply to documents if a third party owns the intellectual property rights (IPRs), this provision could considerably narrow the number of documents that broadcasters could make available and accessible for re-use purposes under the principles of the Directive.