Rethinking Copyright in the Name of Directive 2013/37/EU: Rethinking Copyright in the Name of Open Data Madrid LAPSI Meeting – 23rd May 2014

1) by broadening the spectrum of PSBs which are subject to its rules Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (PSI) represents the renewed legal framework aimed at improving the adoption of open data practices by European public sector bodies (PSBs). Is does so by 1) by broadening the spectrum of PSBs which are subject to its rules 2) by declaiming a general obligation for Member States to make all accessible PSI re-usable

But the same Directive acknowledges that PSBs must adopt this presumption in favour of openness to the extent permitted by certain bodies of law, such as data protection law and intellectual property rights (IPRs)… What kind of IPRs? The Directive does not apply to documents covered by industrial property rights, i.e. patents, registered designs and trademarks (Rec. 22 2003/98). What kind of PSI is also a piece of IPR? A single piece of PSI that amounts to a work of art (copyright) Collection of pieces of PSI that amounts to a database (sui generis database right) Pieces of PSI that are, at the same time, parts of protected databases and works of art in themselves Pieces of PSI that, whereas parts of protected databases, are not IPRs on a stand alone base Who may be the owner of those IPRs? The very same PSBs Third parties (and even initial owners of IPRs held by cultural institutions) PSBs’ employees: economic rights may go to the employer by the contract of employment (right to control + benefits from use, at least in theory) but employee is the author (paternity right + integrity rights)

Is there a general obligation to allow re-use? PSI NOT covered by IPRs covered by IPRs Ordinary PSBs Cultural Is there a general obligation to allow re-use? Yes: when PSI is accessible (according to the national rules on access), then the institution shall ensure the re-use (Article 3 2013/37) but… No: denial is possible in case of PSI for which third parties hold IPRs, but with the obligation to indicate the rights holder (Article 4.3 2013/37) No: denial is possible in case of PSI for which third parties hold IPRs, and without the obligation to indicate the rights holder (Article 4.3 2013/37) No: denial is possible in case of PSI for which employees of PSBs hold IPRs: economic and moral rights (Rec 12, 26 2013/37) Don’t know: PSI for which the PSB holds IPRs, but… a contrario, shall the institution must authorize re-use? ( Article 3.1 2013/37) PSBs should, however, exercise their copyright in a way that facilitates re-use (Rec. 22 2003/98/EC) No: denial is possible in case of PSI for which the PSB holds IPRs (‘where the re-use of such documents is allowed’ Article 3.2 2013/37) liability rule? value as interpretative principle? In these cases, rights clearance is needed No authorisation to reuse Authorization under the conditions set by the IP holders

How much can they charge? Ordinary PSBs Cultural How much can they charge? (article 6 2013/37) Marginal costs incurred for their reproduction, provision and dissemination except At any price below or equal to the cost of collection, production, reproduction and dissemination, preservation and rights clearance, plus a reasonable return on investment Rec. 13 2013/37 (should retain the right to exploit the document) PSI held by PSBs that have to cover a substantial part of their cost relating to the collection, production, reproduction and dissemination PSBs that have to cover a substantial part of their costs relating to the performance of their public tasks At any price below or equal to the cost of collection, production, reproduction and dissemination, plus a reasonable return on investment

Under what conditions (price excluded) re-use shall be granted? Ordinary PSBs Cultural PSBs Under what conditions (price excluded) re-use shall be granted? Via arrangements that are neither discriminatory nor exclusive unless an exclusive right is necessary for the provision of a service in the public interest, provided that: - the arrangement is transparent and public - reviewed at least every three years (Article 11.2 2003/98) What about ordinary PSBs with cultural resources? What is the meaning of ‘cultural resources’? (cfr. Rec. 30 2013/37) Via arrangements that are neither discriminatory nor exclusive unless an exclusive right is necessary for the ‘digitisation of cultural resources’, provided that: - the exclusivity shall in general not exceed 10 years (if longer, reviewed during the 11th year and at least every seven years thereafter) (Article 11, 2 and 2a 2013/37) + general exception of exclusive agreements for the provision of a service in the public interest

PSI is curving out copyright and sui generis rights! In light of this… Ordinary PSBs holding copyright or sui generis rights on their PSI: shall/should not refuse re-use on the basis of their IPRs (limited ‘right to control’) cannot define a charging policy beyond what the new Directive permits (limited ‘equitable remuneration’) But, exclusivity can originate from different sources rather than IPRs… exclusive arrangements! PSI is curving out copyright and sui generis rights!