LAPSI 4th Thematic Seminar Muenster, January 27, 2011 Should the information held by research institutions be included in the EU Directive on PSI Re-use? Razvan Dinca Bucharest School of Law

What is a research institution? Article 1, Subject matter and scope of the Directive 2003/98/EC : 2. This Directive shall not apply to: (e) documents held by educational and research establishments, such as schools, universities, archives, libraries and research facilities including, where relevant, organizations established for the transfer of research results; The main purpose of all this kind of establishment is to disseminate knowledge for the purpose of the scientific progress

The re-use should follow other purpose than to disseminate knowledge for the purpose of the scientific progress Article 2 Definitions »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 »2. "body governed by public law" means any body: »(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; and »(b) having legal personality; and »(c) financed, for the most part by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law; »4. "re-use" means the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use;

Difficulty to define uniform legal solutions at EU level for such diverse scope -Various business models -Various institutional frameworks -Various fields of research -Various national approaches -Proximity to educational policy

Collision with intellectual property rights IP rights incidence –On access confidentiality, copyright, database –On content use patents –On form use Copyright, database

Collision with intellectual property rights - Third parties ip rights- - Limited acquisition - Private funding Industry project based research Incentive to private (co)financing –Employed researchers Reducing the personnel expenses/ preserving good quality personnel

Collision with intellectual property rights Public Research Bodys rights –Distinction between fundamental research and applicative research –The economic viability of the public research bodies might depend on such rights the usual argument of incentive to invest in creation and dissemination may function for publicly funded investments as for the private ones the public financing is limited to the initial investment to be recouped and developed through the market play The ip rights are a tool to compete with private research The ip right are an adequate reward of taking the risk to research The increase of public revenues from direct and indirect taxes on the increasing re-use business might not necessary return in public funding of further research Instead of revenues from charging the reuse, the public research institutions might try to survive by supplying paid services to private sector (research on order) which would trigger new exclusivities –Sometimes research activities based on public investment and the exploitation their results might serve as support to additional services publicly supplied such as education –US experience showed that the university patents stimulate r&d investments in the relevant industries to reach the threshold of the absorptive capacity –The scientific results financed by the public should be freely available for the public? Is the public who finances the same with the public who uses?

Benefits of open data access in public research opening scientific inquiry developing criticism, diversity of analysis, multiple verification and creation of new arguments and studies supporting valuable discoveries promoting new research testing new hypothesis and methods facilitating education

Including the data related to current and future research processes within the PSI Directive would not ensure a satisfactory standard for the access to those data –Research data include factual data, basic research results and (public sectors) patent information –For the purposes of scientific progress, those data should be openly available to the maximum extent possible –Access, use, management and preservation of data should conceived as part of the funded research process –Therefore, within the current technological environment, granting of public funds for research should be conditioned upon a firm obligation of the research body to promptly and completely post on www of all research data used in or obtained from the financed research activity –Only specific exceptions justified by concerns such as national security, commercial secrecy or privacy should be accepted –This obligation of proactive supply of access to research data goes much beyond what the PSI Directive is requiring or might require

Risks of including archives and libraries within the scope of PSI Directive The business model of archives and libraries might depend on direct consultation of the material Digitization and free access of re-users might lack them from financial resources essential to their survival and to the performance of the mission to conserve the arte- facts supporting the information-content Therefore, their inclusion in the directive might slow down the overall process of liberalization of re-use that might result, for example from imposing a PSI charging system based on marginal cost of dissemination

Free re-use as tool for private appropriation of public-funded research collections of archives and libraries => sui generis rights in data-bases research upon and around the results of public- funded research =>patents commercial exploitation of new (information) products While the investment in the final product might mainly come from public subsidies, the revenues from this product will mainly go into the re-users accounts

Free re-use upon request as tool for moving the private research costs on the public the typical way to disseminate the research results is to publish them screening and selecting relevant publication requires a certain cost from the party interested to use the published knowledge for a specific purpose (the private re-user) If the public bodies are bound to provide materials identified in the re-users request in relation to such purpose, their screening and selection should be done by the public body, on public money.

Practical difficulties For the research establishment and the researcher, the sharing of data with applicant re- user, particularly before publication, can be burdensome, time-consuming and non- rewarding Additional costs for public research bodies –technological infrastructure, broad international agreement on interoperability and effective data control –institutional data management –budgetary planning

LAPSI 4th Thematic Seminar Muenster, January 27, 2011 Should the information held by research institutions be included in the EU Directive on PSI Re-use? Thank you. Razvan Dinca Bucharest School of Law