"Open Europe: Open Data for Open Society" Selected legal barriers for Open data results from Lapsi 2.0 best practices in IP

Directive 2003/98/EC ('PSI Directive’) Directive on the re-use of public sector information To encourage the Member States to make as much information available for re-use as possible. Does it stimulate innovation and empower citizens ?

Public sector information – wide range of information that public sector bodies collect produce reproduce and disseminate in many areas of activity while accomplishing their institutional task The Directive covers written texts, databases, audio files and film fragments; – it does not apply to the educational, scientific, broadcasting and cultural sectors. Public sector works – PSI that fulfills the national requirements needed by the national law to obtain copyright and sui generis database protection.

LAPSI2.0 survey on best practices in IP Legal rules on protectability of works Legal rules and contractual practices on rights ownership Legal rules and other practices implemented within cultural institutions

Protectability copyright International – Berne convention art 2(4) : its up to member states to define European

Protectability copyright: International European – No definition of what is public sector work – No harmonisation of copyright – only partial harmonisation of originality (authors own intellectual protection) Originality is treshold for database protection and software

Protectability Sui generis database right European directive – Non-original databases – Substantial investment (qualitative or quantative) – Protection against systematic copying of substantial parts

Protectability of PSW I.Exempted from copyright I.Broad exemption from protection means all PSI and PSW are in the public domain I.Example czech republic, poland, austria, norway II.Narrow copyright protection III.Copyright protected

Protectability of PSW I.Exempted from copyright II.Narrow copyright protection I.Most countries have list of psw excluded from protection o.a. legislation,administrative decisions etc I.Germany, netherland, belgium,itlay,slovenia hungary III.Copyright protected

Protectability of PSW I.Exempted from copyright II.Narrow copyright protection III.Copyright protected I.including legal and official texts no exemption in national law II.Standard national copyright rules apply I.Including the limitations such as private copying, teaching exemptions etc II.Limited term of protection (70 years) III.England: crown copyright regime

Protectability and practices Recommended IP protection but only for integrity check – UK : Crown copyright all is protected under Crown copyright but available under Opengov licence v2.0 IP protection but not exercised – Romania free re-use results in competitive market on court decisions Not recommended

Protectability and practices RecommendedNot recommended Instead of IP protection PSW become subject of exclusive agreements – Czech Republic exclusive agreements for publishing PSW Absence of regulation leads to adhoce rules

Transfer or Rights Made by – Employees Most common is automatic transfer to employer Some :only if contractual, or lack regulation – Third parties Usually no specific provisions so general copyright rules apply = license for re-use is needed Trend to standardize procedures

Transfer or Rights Trend to standardize procedures Is this a good thing ? -Should governments use standards in their contracts that all IP belongs to them ? -Denial of access justified when rights held by third party ?

Availability of data from cultural institution Cultural institutions as PSB – Scope of the new directive is unclear, most likely national definition is leading Metadata produced by Acces to metadata Digitization

Availability of data from cultural institution Cultural institutions as PSB Metadata produced by CI – Absence of specific rules so general copyright or sui generis database rights apply – If produced in pursuit of cultural institutions public task: common public sector work Acces to metadata Digitization

Availability of data from cultural institution Cultural institutions as PSB Metadata produced by Acces to metadata – Digitization of content and proper categorization is pre-requisite for access and re-us of the respective metadata Digitization

Availability of data from cultural institution Cultural Institutions as PSB Metadata produced by Acces to metadata Digitization – Access and re-use mostly alowed for research purposes,teaching,private purposes – Problems Funding Outsourcing

Availability of data from cultural institution Cultural Institutions as PSB Metadata produced by Acces to metadata Digitization Discussion: IP and Digitization: who owns the rights and what access should the public have (under what conditions) Free or fee, commercial use allowed, licenses ?

Incentives for opening access Recommended Examples – UK: linked open data ; access to bibliographic metadata and reuse available uder CC0 – France: National Library; licence Ouverte Digitization prescribed by law for cultural institutions Not recommended

Incentives for opening access Recommended Granting research and educational licenses If not under public domain: negotiation with third party rights holders to make it available under CC Make it policy to open access Green and Gold Not recommended

Are you required to upload the final accepted version of your article to a repository? Open access Author survey march 2013 Taylor &Francis group

Incentives for opening access recommended Not recommended reclaiming copyright on public domain works Misuse of ‘ cultural exception’ to refuse opening up data of cultural institutions Claiming digitized content as their own copyright protected work Entering into private agreements to digitize content with granting exclusive right clauses for commercializing digital content Licenses that only allow cerain re-use.

Left over discussions Should official works be exempted from copyright and SGDR protection as such ? Means: no licensing issues If protected : What licensing framework to use best Contractual: clause that grants further re-use by public sector bodies and further re-users

march 2013 Taylor &Francis group Open access Author survey

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