Fact Sheet

Version May 2010

Re-use: Between Freedom of Information and Intellectual Property Rights

What is this fact sheet about? Freedom of information laws seek to open up PSI whereas intellectual property rights of governments restrict the free flow of such information. Re-use rules are right in the middle of this field of tension.
Aspect Area of law Regulated under Freedom of information rules Public law Mainly national rules and some European sectoral rules (e.g., the INSPIRE Directive) Openness of governments Democratic rights of citizens Re-use rules Competition law PSI Directive EU competition law National competition law Economic growth Fair competition between undertakings Intellectual property rules Private law Treaties (e.g., Berne Convention, TRIPS) Copyright and Database Directives National rules Innovation Intellectual and financial efforts of creators/investors

Driver Protected interests

FOIAs search to open up PSI Access rights to PSI, in most countries regulated through general Freedom of Information Acts (FOIAs), give citizens (and organisations) a right to information on matters that governments are dealing with, as far as such access is not preempted by, for example, State secrets and personal data. FOIAs have a public law character and are instrumental in enabling citizens exercise their democratic rights. IPRs search to limit unauthorized copying At the other end of the spectrum are intellectual property rights (IPRs), copyright and database rights in particular. They form the legal basis for governmental exploitation of PSI, as they allow the rights holder (the government) to disallow copying of PSI without permission and de facto open the door for public sector bodies (PSBs) to charge for PSI. IPRs are typically economic rights: they reward those that have invested time, money, and intellectual efforts in the creation of (inter alia) information with an exclusive right of exploitation. ICT has boosted tension Thus, where FOIAs open up content resources held by PSBs, exercising IPRs may have the opposite effect. This tension has become more prominent as information technologies have allowed for the digitisation of PSI: suddenly PSBs (or at least some) have recognised the potential for income generation.

Re-use rules do not affect existing regimes The PSI Directive does not change anything substantive. It leaves both IPRs (also those held by third parties) and FOIAs untouched: under Article 2(3) the Directive builds on and is without prejudice to the existing access regimes in the Member States; whereas according to Article 2(5), the Directive only applies as far as it is compatible with the provisions of international agreements on the protection of intellectual property rights. Re-use rules strike careful balances However, according to Recital 22 of the PSI Directive, PSBs should exercise their IPRs in a way that facilitates re-use. Here Articles 10(2) and 11 of the Directive play an important role, obliging PSBs that exploit and add value to their PSI (outside the public task), to apply equal terms to third parties as they apply internally and, as a rule, not to enter into exclusive agreements with re-users. Competition law drives fair competition Finally, the exercise of IPRs by PSBs is also limited through general rules of competition law, as the European Court of Justice (ECJ) demonstrated in the well-known Magill case, which concerned Irish broadcasters that refused to license lists of TV programmes. There the ECJ held that the exercise of copyright can lead to an abuse of a dominant position, thus making such conduct illegal. The Compass case, yet to be decided by the ECJ, is likely to elaborate on this matter.

ePSI Platform Fact Sheets provide short introductions to key concepts and developments, allowing new comers to the PSI re-use arena to get up to speed swiftly. Find ePSI Platform Fact Sheets at epsiplatform.eu.