[Home] [Help] [Databases] [WorldLII] [Feedback]
	Murdoch University Electronic Journal of Law

The Commercialization of Government Information and the Proposal for a Directive COM(2002) 207 by the European Commission

Author:	Johan Pas LLM (VUB), Lic. Rechten (VUB) Institute for European Studies of the Brussels Free University (VUB)
Issue:	Volume 9, Number 4 (December 2002)

Contents:

• Introduction
• Data and Information
• What is it all about
• Public or private information services
• The Status of Public Sector Information
• Access to government information
• Exploitation of government information
• The Belgian situation
• Conclusion
• COM (2002) 207
• Some remarks on the proposal
• Notes

"...the more technical the world becomes, the more necessary is the promotion of individual freedom and the individual's awareness of himself as a counterbalance."[1]

Introduction

1. Document COM(2002)207 final,[2] dated June 5th 2002, contains the proposal of a directive by the European Commission, to the European Parliament and the Council, concerning the commercial use and re-use of government information. This proposal results from the Commission's Communication on the eEurope 2002 Action Plan "An Information Society for All",[3] and aims at contributing to the in the eEurope set objectives regarding 'eGovernment' and 'digital content'. In turn these objectives are part of the mission with which the EU has charged itself during the Lisbon European Council in March 2002, to become the world's most competitive and dynamic economy.[4] This requires Europe to be introduced into the digital era, including as regards government information. However, the European Commission wants to go further than mere 'digitalization'. It is convinced that government information is not only important for the democratic and citizens' wellbeing, but it also has a key economic role to play, in particular in relation to the good functioning of the internal market. Along with the latest technologies, which allow it to combine data from different sources, an improved regulative framework for the commercial use of government information may lead to new services and products.[5]

2. 68 Billion Euro is, according to one study, the estimated annual economic value of government information in Europe. This amounts to 1% of the GNP of the European Union, and is equal to EU industries like those of legal services, printing, or textiles.[6] Nevertheless, it remains largely a potential value. Indeed, within the EU there appears to remain some obstacles which prevent the realization of this potential value, or at least seriously hamper it. Pointing out a number of these problems, while making a comparison with the United States, is one of the objectives of this article. Furthermore the article briefly discusses the directive proposed by the European Commission, in which Brussels tries to respond to the demand for harmonizing the exploitation of government or public sector information. The article points out some of the dangers that exist when commercialization of public sector information is pushed to its limits, and raises a number of questions regarding the role for a government in commercialising its own information.

3. Indeed, the commercialization of government or public sector information is subject to a constant tension between potentially competing interests: the need for a government to maximize administrative resources, the commitment of governments to free information dissemination as a basis for their legitimacy, and market forces. Within a democratic society respecting the rule of law, those who govern need legitimacy. This means that, those who govern have to be 'accepted' by those who are being governed. This legitimacy is based on three fundamental principles: democracy, the rule of law, and the efficiency of government.[7] The general purpose of open records is so that citizens can be informed of the actions of government officials and employees in order to hold them accountable.[8] On the other hand the government, according to the theory of bureaucratic rationality, is obliged to maximize its administrative resources. Especially during the eighties, we saw efforts by government agencies to counter lack of funding and increase their budgetary resources.[9] Thirdly, markets consider information as a private good, something which can be produced and sold according to profit criteria. This might be called 'the commodification of information'. Noam considers all information, not only public sector information, to be open to commerce without special consideration for the intellectual content behind it. It is part of a larger commodification process of the capitalist system.[10] Marx already had raised the criticism that under capitalism everything becomes a commodity, everything can be bought and sold.[11]

   Data and Information

   What is it all about

4. It is important to state from the beginning the scope of certain terms. In this article 'data' covers every symbol, sign or measure which is in a form that can be directly captured by a person or a machine. Conventionally, the most useful data is that which represents (or purports to represent) real-world facts and events.[12]

5. 'Information' is a notion which is much more difficult to define. This difficulty is due to the fact that information has different meanings. It is used both as: a process allowing you to obtain knowledge and insight, the knowledge which is the result of this process, and as a commodity.[13] Essentially it differs from data because it can be placed in a context and, as such, has a value.[14] Public sector information is defined as all information held by public sector bodies, irrespective of the medium through which it is conveyed. Thus it includes information written on paper or stored in electronic form or as a sound, visual or audiovisual recording and any part thereof.[15]

6. Governments appear to be the largest producers of information.[16] In exercising its public task government obtains a multitude of data, which after processing and storage (thus placing it in a context) results in information. The latter can be divided in different categories: economic information (financial information, information concerning undertakings and economic statistics), environmental information (of a hydrographic nature, information on the use land, information regarding the quality of the environment, geographical and meteorological information), agricultural and fishing information (information on harvests, use of resources, and fisheries), social information (demographic information, behavioural information, information concerning health and sickness), legal information (information regarding crimes, but also on laws and jurisprudence), scientific information (results of research by universities and government subsidized research institutions), cultural information (objects situated in museums and art galleries, as well as library services) and finally, political information (press releases by governments, proposals and consultation). Besides its use in exercising governments' public task, this information can also be used for commercial purposes, either by governments themselves or by third parties, and thus, makes such information a valuable resource. It is clear that the potential economic value of all information will not be equal. The economic value of cultural or political information will be less than that of geographical information.[17]

   Public or private information services

7. The notion of commercial exploitation of public sector or government information covers two aspects, since exploitation is not limited to trading information for profit by the private sector. It may also consist of governments providing information in order to obtain additional financial resources.[18] As to the latter, this is not new, since already in the seventies and eighties the idea arose that governments had to divulge the information they possessed, free or with marginal cost, due either to the democratic rights of citizens and the rights of consumers, or to commercial undertakings. Undertakings would then by way of processing add value to the data, both in form and in content, and governments would sell this product at market price. By the end of the eighties and beginning of the nineties governments became increasingly aware of the potential value of their information. This awareness came at a time when the public sector in all countries had budget deficit problems and, at least in some countries, privatisation of public sector bodies was seen as a means for more efficient performance and lower charges for the taxpayer.[19] Besides governments who tend towards a more economic approach to (public) information services -more efficiency and increased importance of profit- others in the corporate world also realize the interesting opportunities for exploiting public sector information.[20] Realization of this potential value may occur in two ways: either as a government commercialises the information it possesses, or through outsourcing.[21] This choice is less easy than it may appear, since it entails a decision about the appropriate role for government in markets.

8. Initially there appeared to be some consensus -with varying degrees of enthusiasm- on the respective roles of the public and private sectors with regard to information dissemination. Government was, as a result of the public task it was charged with, a mere producer of information, and had to allow, private sector players to add value and sell at market prices.[22] However, this balance has gradually been disturbed because of technological evolution. The importance of the private sector was, until then, providing raw data in a more user friendly way, both in form and content. Increased informatics by governments has however made the distinction between raw data and information rather vague, both as to format and content. Nowadays it demands little effort to combine different data and obtain commercially valuable information. As a result, now there is less need for added value to raw government data. Private sector industries appear to claim government information as their property, since in the past their 'in-between' role was indispensable for making the government data useable. However, in the present situation they appear threatened. The fact that governments may now present their data and information in a user friendly way, decreases the value private sector may add, and makes its intervention appear no longer indispensable. If government information is presented in a ready-to-use way, its commercialization may largely by-pass the private sector. This might explain the private sector's hunger for growing markets and for limitations on government information goods and services.

9. The pre-eminent argument against governments commercialising their own information remains that of fair competition. One idea is that governments, due to their function as tax collector, already benefit from the necessary resources which should allow them to disseminate information. In addition, letting them commercialise public sector information would create the possibility of unfair competition by allowing sales below costs, hence driving out private sector initiative altogether. "But unlike other types of goods or services, the very existence of government information is uniquely due to the existence of the government itself. Government information is not a raw resource [...]. The concept of unfair competition is therefore a poor argument. In fact, the government is supplying private industry with an already-developed resource at no cost."[23]

10. The argument of the taxpayer's protection is just as difficult to accept. Often times the argument by proponents of free government data is that, because the taxpayer paid for collection and development of the information in the first place, it is an unfair, double burden to have to pay when requesting the information. However, Peterson argues, a very basic argument refutes this line of reasoning. Simply because a resource is obtained through expenditure of public funds, does not mean it is available for the use of any taxpayer at no charge. None of us would think of walking into a government office to use a typewriter, simply because it was paid for with taxpayer's money.[24] The utilitarian argument is also often put forward, particularly by undertakings. However, the claim that public sector involvement will chill initiative and destroy existing jobs is based on questionable assumptions. When the government was already supplying information products, private companies successfully competed through the two main strategies: repacking and reselling of the same basic information (copyright is not an issue) and by adding value (new elements subject to copyright). These strategies have been exploited in many ways.[25]

11. Presently this situation seems to be turned upside down, and private undertakings feel threatened in their position because governments deliver their information in a user friendly way. In addition, governments provide commercial services outside the scope of their essential public tasks. Such government activities do not, contrary to what is often argued by utilitarian theorists, mean an end of innovation. On the contrary, private undertakings will be motivated to remain creative, and keep ahead of the information services governments provide themselves. At the same time, this creativity, and -due to competition with the government- the resulting added value, will justify price differences. The private sector would no longer be able to merely resell basic information, but will have to finalize a semi- or quasi-finished product. Likewise this would counter another argument heard, that of government products by definition being of inferior quality. As such, commercial activities by governments do not create unsolvable difficulties. One should focus on government bodies being allowed to contract with a company in order to create and sell a copyrighted product.[26]

12. Indeed, far more disturbing to fair competition would be the creation of a monopoly over public sector information by a company. A private company which concluded an agreement to sell exclusively government information, not being part of its public responsibilities, should be subjected to the same rules regarding competition as any other undertaking. Within EU-law this particularly concerns examining whether there was an abuse of a dominant position (art. 82 of the Treaty) and the practice of state aid. In order to conclude whether article 82 of the treaty has been violated, the following elements have to be determined: an abuse, undertaking(s), a dominant position, within the common market or a substantial part of it, and affecting inter-state trade. One sort of abuse could exist in refusing to supply public sector information to other economic actors or impose excessively high prices.[27] However, bearing in mind article 86 -which provides an important exception to article 82 and fair competition in general,[28] the conclusion of a breach of article 82 will be all but evident.[29]

13. Another interesting problem concerns the practice of state-aid. One might wonder how providing a company exclusively with public sector information complies with articles 87-89 of the Treaty, in particular regarding information falling outside the public task of the government.

14. If a government would transfer its whole information dissemination activity, including that arguably belonging to its public responsibilities, then not only will fair competition be disturbed, but worse, it would undermine a fundamental democratic right. For example the Netherlands government decided to exclusively transfer the dissemination of consolidated legal information to a consortium of publishers, which owns all copyrights, and is allowed to charge - albeit at market price - all users except state governments and Staten Generaal -but including municipalities, provinces, individuals and companies.[30]

15. In the United States, unencumbered by the policies that limit federal information activities, at least a dozen States have established agreements with private companies to operate state websites and provide public information. An example is the Information Network of Kansas. It is managed by the Kansas Information Consortium, a private, for-profit organization. While 80 percent of the information is free, the remainder is accessible by paying a $50 annual fee plus a transaction fee.[31]

16. In general, without adequate funding and support, States will increase the use of commercial advertisements and begin charging citizens for the right to access public information in order to generate the necessary revenue. The first creates potential conflicts of interest, while the latter exacerbates the digital divide between rich and poor.[32]

    The Status of Public Sector Information

17. In order to be able to answer this question a brief introduction to the American and European system regarding government information is required; in addition the situation in Belgium is concisely touched upon.

    Access to government information

18. By law, works of the United States Government are in the public domain, to protect taxpayers from paying twice for information, and to encourage the widest possible dissemination of that information.[33] The general principles on access to federal government documents are found in the Constitution and federal statutes. The First Amendment in the U.S. Constitution prohibits generally any government effort to limit freedom of expression and information. In addition to this constitutional principle of non-intervention, the 1976 Copyright Act,[34] explicitly forbids copyrights for any government work. As such, federal government is prevented from defending the economic and legal interests of a copyright holder. The result is that all government information is part of the public domain. Although both the Constitution and the Copyright Act seriously limit the possibilities for governments, they do not make information available for the public. Until 1966, the disclosure of government documents was largely discretionary. Agencies were rarely forthcoming with information unless it was in their interest. There was no law that provided a mechanism for public access.[35] The Freedom of Information Act,[36] (FOIA) brought some change. The FOIA provides as a general principle that any person may request any document which the government has in its possession. Only a limited number of exceptions to this principle are allowed, in order to protect legitimate government and private interests.[37]

19. The situation in Europe is of a different kind. It is based on a different concept of access to and use of government information and it is characterized by important national differences. This is mainly due to different answers that are given to two, and, according to Professor Perrit, key questions; namely whether : 1) citizens (and information resellers) enjoy a right of access to public information, and conversely 2) can the government hold a copyright over information?[38] As to the first question, access to government information in Europe constitutes a human right, to be exercised at the lowest possible price.[39] Within the Council of Europe early agreement existed on what should be meant by access to government information: "By a general right of access to public sector information we refer to a legislated legal principle that starts from the assumption that there is a basic right of access to any information held by public sector entities, that such a right needs not to be based on a specific legal or legitimate interest, that exemptions to such a right are only legitimate when there are overriding public or private interests to be protected, that such a right has to be effectively applied by administrations in particular with regard to the response time to such requests and the costs involved for such a request, and that, finally the refusal of access can be challenged in court."[40]

20. Although a consensus may exist about the general principle, the implementation of its practice is not free of problems. Thus, within Europe different national rules exist, and there has been a major discussion about a general principle of access to documents from EU institutions. Acceptance of such a principle has been the subject of dispute for several years, and only in May 2001 a regulation[41] which provided general access to documents from the European Parliament, Council and Commission was agreed upon.[42] The Charter of Fundamental Rights of the EU also recognizes the right of any citizen, natural or legal person residing or having its registered office in a Member State to have right of access to European Parliament, Council and Commission documents.[43]

    Exploitation of government information

21. Notwithstanding a general consensus on access, the same cannot be said as to the commercial use or exploitation of government information. One reason is due to differences that exist concerning copyright for government benefit. Intellectual property protection is as central to commercialization as public access law, albeit in the opposite direction. If a public entity can hold a copyright in public information, it has the legal means to exclude the private sector or to establish and maintain exclusive arrangements with preferred private sector providers.[44]

22. The question of whether governments may benefit from copyright protection in Europe cannot be answered by a simple 'yes' or 'no'. In most countries copyright protection for governments is allowed, but only under specific circumstances and if explicitly stated by law. In some countries, due to the level of copyright protection, possibilities for commercialization remain rather limited.[45] The legal framework in other countries, on the contrary, enhances possibilities for commercial exploitation.

23. Such a division implies that, in those countries which have both access to public sector information laws and laws concerning the dissemination of public sector information (including commercial dissemination), both are regarded as conceptually different activities. The former constituting a human right, to be exercised at the lowest possible price and the latter constituting an activity based mainly on the principles of competition and intellectual property right law reflected in the price of such dissemination.[46]

24. Thus, access to and the commercial exploitation of public sector information is approached from different legal points of view. Access is seen as a matter of res publica, perceived as being part of the public sphere of democratic control and transparency, and as such, dealing with the vertical relation between government and citizen. However, the use of public sector information touches, upon the private trade law aspects between economic actors, and their relation is perceived to be of a more horizontal kind.[47]

25. In the United States, the domestic federal information policy is based on the premise that government information is a valuable national resource, and that the economic benefits to society are maximized when government information is available in a timely and equitable manner to all. Policies such as charging no more than the cost of dissemination and prohibitions against restrictions on the reuse or re-dissemination of government information are aimed at achieving this goal.[48] So, generally, in the US there appears to be no restriction on the commercial use of government information, since this is inherent in the right of access to information. This inherent belief may in part be historically explained. The recent evolution in technology, made one of the basic statutes that provided general access to government information fall short of dealing with new (electronic) forms in which information is stored. Indeed the FOIA was drawn up from a presumption that government information would be stored in paper format, and also, as a general condition, set forth the requirement of a formal request before disclosing any information. Some government agencies abused this conditionality or the perception thereof to prevent access to information stored on computers and enhance agency control over data.[49] This resulted in somewhat of a paradox since, although copyright protection for government was explicitly forbidden by law, some agencies did acquire some sort of a copyright-like control.[50] Finally, the federal legislator intervened by passing the 1995 Paperwork Reduction Act,[51] which provided rules regarding information dissemination, and as such put an end to abusive practices by government agencies like the ones described above.

26. Thus as a general principle, is it prohibited for any government agency, except where specifically authorized by statute to:
    (1) establish an exclusive, restricted, or other distribution agreement that interferes with timely and equitable availability of public information to the public,
    (2) restrict or regulate the use, resale, or re-dissemination of public information by the public,
    (3) charge fees or royalties for resale or re-dissemination of public information, or
    (4) establish user fees for public information that exceed the cost of dissemination.[52]

27. The general provisions of the Paperwork Reduction Act were implemented in the daily routine of the different agencies. The OMB Circular A-130 Management of Federal Information Resources[53] was supposed to provide a number of practical guidelines for private contractors among others, but it also contained a detailed description of general principles formulated by the Paperwork Reduction Act.[54] Finally, in 1996 the Electronic Freedom of Information Act[55] was adopted, which consisted mainly of an amendment to the FOIA, which guaranteed the right of access to government information in the light of technological evolution, by stipulating, for example, that governmental documents in the future had to be made available in electronic format.

28. On the state and local level the situation is different. There is no general prohibition on copyrighting government information. States are making use of copyright in order to enclose formerly free information, and then sell it either directly or by way of exclusive contracts with intermediaries. As such rules regarding copyright at the state level allow anyone, including states themselves, to maximally exploit the economic value of their information.[56] As to the question of whether a conflict exists between laws which allow access to government information and those regarding copyright of states the answer appears unclear although a federal court judged there was no conflict.[57]

29. Apart from copyright the process and use of personal data plays an important role as well. Since the government probably possesses our most intimate data, adequate protection appears indispensable. The tension that exists between protection of personal data and the right of access to information attracts different treatment from both continents. Laws in the US and the EU seem to be each others' mirror image. Europe has a tradition of strongly developed laws regarding data protection,[58] contrary to the US.[59] However, where access to information is concerned, the opposite is true. There America has a comprehensive system reflecting the commitment to access, with Europe only having a patchwork system.[60]

    The Belgian situation

30. Due to the federal structure of the Belgian State, government information policy is being dealt with at several levels. Article 32 of the federal Constitution acknowledged since 1993 that access to government information is a fundamental right. However, this article only covers passive disclosure of government information. There are also a number of laws which impose a duty of active dissemination upon governments.[61] These are for example at federal level the publicity of administration law of 11 April 1994,[62] for the Flemish Region a Decree of 18 May 1999,[63] for Brussels an Ordinance of June 26th 1997,[64] and as regards the municipalities and provinces, a law of 12 November 1997.[65]

31. These laws all provide a general right of access to documents in the possession of public administrations. As to commercial exploitation of the government information obtained on the basis of these laws, each of them includes provisions explicitly prohibiting such practices.[66] There is no other legislation regulating commercial use of government information, which means that there is only a prohibition for commercial exploitation of government information obtained on the basis of the above-mentioned provisions. Taking into account a proposal of the European Commission, Belgium will have to ponder a general right of using and re-using government information for commercial purposes. This will involve legal initiatives, putting down priorities, and making up choices. As a consequence, the development of a clear policy and an attempt at striking a balance between democratic and economic aspects of government information will be indispensable.[67]

    Conclusion

32. One might conclude that in the US, at least at the federal level, a broad right of access to government information exists, copyright protection for governments being prohibited, where charges principally have to be limited to costs made for dissemination,[68] and no limitation on re-use is allowed. The use of government information within Europe, including the institutions of the EU, is traditionally a controversial matter. The main reason for the difference is that both continents have fundamentally distinct viewpoints about access to and use of government information. While for one there is no distinction between them, the other conceives them as conceptually different activities.

    COM (2002) 207

33. The European Commission is convinced that an economic necessity exists for regulating commercialization of government information, and therefore bases itself on the situation in the U.S. Although commercial exploitation of public sector information owns an important economic potential, the European market remains characterized by legislative vagueness and lack of consistency. Since this results in uncertainty about the conditions according to which such information may be used, undertakings may refrain from intra-community trade in public sector information.[69]

34. The most important barriers for successfully exploiting public sector information are: differences between the EU member states as regards administrative rules or practices, differences in pricing methods, and the uncertainty about the conditions for re-use.[70] At least some legal harmonization within the EU, both relating to commercial and non-commercial exploitation of public sector information, is therefore needed. This is precisely the main purpose of the proposed directive.[71]

35. It should be stressed, however, that this proposal is not aimed at enlarging the access to information, it only relates to (re-)using public sector information that is already accessible under current legislation.[72] Furthermore the proposal provides a number of exceptions,[73] which -although in principle the matter at hand consists of government information- do not include the re-use for commercial or non-commercial purposes. The obligations pursuant to the proposal would only apply as far as they are compatible with the provisions of international agreements on the protection of intellectual property rights.[74]

36. The re-use, both for commercial and non-commercial purposes, of generally accessible public sector information to which the proposed directive applies, is subject to a number of conditions. The general principle mentioned in article 3 of the proposal does not impose an obligation upon governments or public authorities to enforce (re-)use certain documents. States are merely invited to encourage their government and public agencies to make such documents available for (re-)use. Only when they allow doing so, chapters I and II of the proposed directive are applicable.[75] Obligations resulting out of the provisions of these chapters are mainly concerning governments or agencies.

37. A reasonable time limit is imposed, within which the government or the agency shall treat a request and make information available. This timeframe should be no longer than the one provided for accessing documents.[76] In order to respect the differences in national access regimes, a regime is proposed which brings reply times to requests for re-use in line with timeframes applicable for accessing the information.[77] If however, no time-limit is provided, the proposed directive stipulates that treatment and delivery of the request shall be no more than three weeks, starting from the date of receipt.[78] Whenever a request for re-use is being refused, the public sector body concerned shall inform the applicant of the grounds for refusal, in particular the relevant provisions of the access regime in that Member State, or one of the exceptions provided in the proposed directive.[79] Furthermore, any negative decision shall also contain a reference to the means of redress, in case the applicant wishes to appeal.

38. The proposal also provides for a principle of non-discrimination. Conditions applicable for re-using public sector information shall be non-discriminatory.[80] Besides this principle, the government is also held not to take an unfair advantage: some governments or public agencies do exercise commercial activities which fall outside the scope of their public task. In as far as such a government or agency would use its own information as an input to its own commercial activities, the same charges and other conditions have to be applied as if it would consist of a request for re-use from a third party. The idea behind this is, of course, that one wants to avoid a situation where a government can abuse its privileged position when exercising its public task, and so gain an unfair advantage when exercising commercial activities.[81]

39. The costs and fees which may be charged for allowing access of re-usable public sector information will probably be the most difficult to deal with. The proposal stipulates that when costs and fees are charged, the total income shall not exceed the cost of production, reproduction, and dissemination of the documents requested, plus a reasonable return on investment. The burden of proof for the cost-oriented charges lies with the public sector body charging for the re-use.[82] Governments and agencies concerned may of course lower the cost or ask no charges at all. The charges the government or agency applies, as well as any other condition for re-use, have to be clearly and expressly published, in order to guarantee the required transparency.[83] Since a government possessing information is in a market situation similar to that of a dominant undertaking, one should avoid prices that are arbitrarily set or excessive. After all, the matter consists of information collected by the government within the framework of its public task and by way of public funds. This explains in sum the cost-oriented approach being used.[84]

40. In order to guarantee fair competition the proposal does provide a prohibition on exclusive agreements regarding information between governments and public agencies on the one hand, and third parties on the other, at least as far as such agreements constitute an unjustified restriction of competition.[85] Here, one also presumes that an exclusive agreement would, if resulting in an abuse of a dominant position by an undertaking, violate the competition rules of the treaty, and in particular article 82 and article [86] This proposal thus reflects the treaty obligation of removing all unjustified exclusive arrangements.86 Nevertheless, an exception is provided in that exclusive agreements, for reasons of general interest, may be indispensable. The grounds which would justify these exclusive agreements will be subjected to periodical review, and each will be separately judged, bearing in mind the application of article 86 of the treaty.[87]

    Some remarks on the proposal

41. One cannot avoid having the impression that by introducing this proposal, the EU is trying to run before it learned to walk. One tries to regulate the use of public sector information on a European level without a total agreement about some essential elements, which should be articulated first. These include allowing a copyright for governments or public agencies; and guaranteeing a general and identical right of access to government information within the whole European Union, its institutions and its member states.

42. Indeed, one cannot fail to wonder on what basic precept, on the basis of which viewpoint, the Commission tries to regulate the matter. Is it one of guaranteeing a fundamental right of access to public sector information for the European citizen? Arguments appear rather to be based on a United States-inculcated view. As a consequence, the proposed regulation may take into account too much the private advantages of commercialization, without providing a sufficient counterbalance for public access. A closing off of public sector information might be the result.

43. As to the role of the public sector itself, another remark is to be made. What appears to be forgotten is that precisely because the matter deals with government information, intervention from a government is unavoidable. The classical, liberal inspired, argument that any commercial action by government by definition results in disturbing fair competition is in this case a poor one. In the past, undertakings have made great use of data and information governments collected in order to, after having processed and repacked them, sell these products. Precisely because at that time information mainly existed in paper format, the variable and invariable costs necessary for processing and repacking it were high, perhaps too high to fit the governments' budgets. Therefore an intermediate role of private companies in storing and repacking this data and information was perhaps wanted, sometimes indispensable. The important difference today, is that an increasing part of public sector information is available in electronic or digital format, which makes the cost to process and resell this information much smaller than before. These reduced costs also apply to the public sector itself. Because of the digital format in which they can collect and store their information, data can easily be repacked and sold into a user friendly way.

44. Should not the European Commission, before introducing a directive on the commercial exploitation of public sector information, first deal with the above mentioned issues, including a guarantee for an effective basic right of access to government information for all European citizens? Condition sine qua non appears to be to provide rules on a European level that not only recognize such a right, but also provide a uniform procedure of accessing government information within all the member states. This will include the problematic question of whether governments may benefit from copyright protection. Only when a (vertical) fundamental right of access to government information has effectively been provided, might one consider the (horizontal) right of commercialization. When arguing the latter, one should also determine what the appropriate role for governments or public agencies is.

Notes

[1] Final Statement A. Speer during the Nuremberg Trials, Nuremberg Trial Proceedings, Vol. 22, 3

[1] August 1946, http://www.yale.edu/lawweb/avalon/imt/proc/08-31-46.htm, 6/9/2002, p. 405.

[2] Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 207 Final, 5 June 2002, http://www.cordis.lu/econtent/psi/psi_policy.htm, 20/12/2002, 18 p. , further called 'the proposal'.

[3] Action Plan prepared by the Council and the European Commission for the Feira European Council 19-20 June 2000, eEurope 2002: An Information Society for All, 14/6/2000, http://europa.eu.int/information_society/eeurope/action_plan/pdf/actionplan_en.pdf, 2/7/2002, 29 p.

[4] Ibid, p. 1.

[5] Green Paper on Public Sector Information in the Information Society, Public Sector Information: A key Resource for Europe, Com(1998) 585, http://www.cordis.lu/econtent/publicsector/greenpaper.html, 17/6/2002, p. 9.

[6] X, Commercial Exploitation of Europe's Public Sector Information - Final Report, Surrey, England, Pira International, 2000, http://www.cordis.lu/econtent/studies/studies.htm, 9/7/2002, p. 16.

[7] Rosenthal, U., Ringeling, A.B., Bovens, M.A.P., 't Hart, P., Van Twist, M.J.W., Openbaar besuur. Beleid, organisatie en politiek, Alphen aan den Rijn, Samson H.D. Tjeenk Willink, 1996, 29-31; Schram, F., Begrenzingen aan de openbaarheid van bestuur, Part 1, PhD-thesis, Leuven Catholic University, 2002, p. 92

[8] Peterson Dando, L., 'A Case for the Commercialization of Public Information', http://www.spatial.maine.edu/tempe/dando.html, 3/12/2002, p. 2, also published in Bamberger, W. & Sherwood Bryan, N. (eds.), Marketing Government Geographic Information: Issues and Guidelines, Washington D.C., URISA, 1993.

[9] Papapavlou, G., Public Sector Information Initiatives in the European Union, 1999, http://webworld.unesco.org/infoethics2000/documents/paper_papapavlou.rtf, 11/7/2002, p. 2.

[10] Elkin-Koren, N. & Weinstock Netanel, N. (eds.), Information Law Series: The Commodification of Information, The Hague, Kluwer Law International, 2002, p. 49.

[11] Ibid, p. 50.

[12] Clarke, R., 'Freedom of Information? The Internet as Harbringer of the New Dark Ages', First Monday, Vol. 4, Nr. 11, 1999, http://firstmonday.org/issues/issue4_11/clarke/index.html, 26/8/2002, p. 3.

[13] Mock, W., 'On the Centrality of Information Law: a rational discussion of information law and transparency', John Marshall Journal of Computer and Information Law, 1999, p. 1074.

[14] Clarke, R., 'Freedom of Information? The Internet as Harbringer of the New Dark Ages', First Monday, Vol. 4, Nr. 11, 1999, http://firstmonday.org/issues/issue4_11/clarke/index.html, 26/8/2002, p. 3.

[15] European Parliament Committee on Industry, External Trade Research and Energy, 'Draft report on the proposal for a European Parliament and Council directive on the re-use and commercial exploitation of public sector documents', 2002/0123(COD) Provisional, 29/10/2002, p. 13.

[16] X, Commercial Exploitation of Europe's Public Sector Information - Final Report, Surrey, England, Pira International, 2000, http://www.cordis.lu/econtent/studies/studies.htm, 9/7/2002, p. 8.

[17] According to that same study was the estimated economic value in Europe for geographic information 35,8 billion Euros in 1999, for cultural information only 3,9 billion Euros. X, Commercial Exploitation of Europe's Public Sector Information - Final Report, Surrey, England, Pira International, 2000, http://www.cordis.lu/econtent/studies/studies.htm, 9/7/2002, p. 16.

[18] Van Eechoud, M.M.M., 'Openbaarheid, exclusiviteit en markt: commercialisering van overheidsinformatie', Mediaforum, Nr. 6, 1998, http://www.ivir.nl/publicaties/eechoud/overheidsinformatie.nl, 10/7/2002, p. 3.

[19] Papapavlou, G., Public Sector Information Initiatives in the European Union, 1999, http://webworld.unesco.org/infoethics2000/documents/paper_papapavlou.rtf, 11/7/2002, p. 2.

[20] Van Eechoud, M.M.M., 'Openbaarheid, exclusiviteit en markt: commercialisering van overheidsinformatie', Mediaforum, Nr. 6, 1998, http://www.ivir.nl/publicaties/eechoud/overheidsinformatie.nl, 10/7/2002, p. 3.

[21] It should be noted here that it generally concerns information services which fall outside the scope of a government's public task.

[22] Papapavlou, G., Public Sector Information Initiatives in the European Union, 1999, http://webworld.unesco.org/infoethics2000/documents/paper_papapavlou.rtf, 11/7/2002, p. 2.

[23] Caws-Elwitt, H., 'Copyright, Competition, and Reselling Government Information: Impact of Dissemination', Katharina Sharp Review, Nr. 7, 1999, http://edfu.lis.uiuc.edu/review/7/caws-elwitt.pdf, p. 3.

[24] Peterson Dando, L., 'A Case for the Commercialization of Public Information', http://www.spatial.maine.edu/tempe/dando.html, 3/12/2002, p. 4, also published in Bamberger, W. & Sherwood Bryan, N. (eds.), Marketing Government Geographic Information: Issues and Guidelines, Washington D.C., URISA, 1993.

[25] Caws-Elwitt, H., 'Copyright, Competition, and Reselling Government Information: Impact of Dissemination', Katharina Sharp Review, Nr. 7, 1999, http://alexia.lis.uiuc.edu/review/7/caws-elwitt.pdf, p. 4.

[26] Ibid, p. 6.

[27] See for example, on the refusal to supply information, the ruling of the European Court of Justice in the famous Magill-case. ECJ, RTE & ITP v. Commission, 1995, ECR, I, 743.

[28] According to article 86 paragraph 2 of the Treaty, once a proposed information service can be described as serving the general economic interest, the authorities charged with managing such a service are no longer required to respect Community rulings on fair trade where these pose a de facto or legal barrier to the accomplishment of their mission. See De Terwange, C., 'Effect of Fair Trading Laws on the Commercialization of Data Held by the Public Sector' in de Terwange, C., Burkert, H., and Poullet, Y., Towards a Legal Framework for the Diffusion Policy for Data held by the Public Sector, Deventer, Kluwer, 1995, p. 64.

[29] For further explication on the relation between art. 82 and art 86 (2), see Jones, A.& Sufrin, B., EC Competition Law: Text, Cases and Materials, Oxford, Oxford University Press, 2001, 430-478.

[30] Van Eechoud, M.M.M., 'Openbaarheid, exclusiviteit en markt: commercialisering van overheidsinformatie', Mediaforum, Nr. 6, 1998, http://www.ivir.nl/publicaties/eechoud/overheidsinformatie.nl, 10/7/2002, p. 4.

[31] Gellman, R., 'The Foundations of United States Government Information Dissemination Policy', ITA Access and Ownership of Public Sector Information - International Symposium Vienna 7 December 2001, http://www.oeaw.ac.at/ita//access/abstracts.htm, 27/7/2002, p. 9.

[32] West, D.M., State and Federal E-government in the United States 2001, 2001, http://www.brown.edu/Departments/Taubman_Center/polreports/egovt01us.html, 12/8/2002, p. 14.

[33] Caws-Elwitt, H., 'Copyright, Competition, and Reselling Government Information: Impact of Dissemination', Katharina Sharp Review, Nr. 7, 1999, http://edfu.lis.uiuc.edu/review/7/caws-elwitt.pdf, p. 1.

[34] Copyright Act of 1976, Pub. L. No. 94-553, 90, Stat 2541, October 19, 1976, http://www.copyright.gov/title17/circ92.pdf, 17/7/2002, 237 p.

[35] Gellman, R., 'The American model of access to and dissemination of public information', Stockholm 1996 Conference: Access to Public Information: A key To Commercial Growth and Electronic Democracy, 1996, http://europa.eu.int/ISPO/legal/stockholm/en/gellman.html, 16/7/2002, p. 2.

[36] Freedom of Information Act of 1974, 5, U.S.C., § 552, http://www4.law.cornell.edu/uscode/5/552.html, 17/7/2002, 12 p.

[37] There are nine exceptions which justify non-disclosure of government information, among others, information regarding national security, trade secrets, etc. Every time the government invoke one of these exceptions, it carries the burden of proof.

[38] Perrit, H.H. Jr., 'Commercialization of Government Information: Comparisons Between the European Union and the United States', Internet Research, Vol. 4, Nr. 2, 1994, p. 7.

[39] Papapavlou, G., Public Sector Information Initiatives in the European Union, 1999, http://webworld.unesco.org/infoethics2000/documents/paper_papapavlou.rtf, 11/7/2002, p. 3.

[40] Council of Europe, Parliamentary Assembly, Recommendation 854 (1979) on access by the public to government records and freedom of information, quoted in Burkert, H., Public Sector Information: Some Implications for a European Information Structure, http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf, 11/7/2002, p. 10

[41] Regulation nr. 1049/2001 by the European Parliament and the Council, 30 May 2001, 'Access to documents of the European Parliament, the Council and the Commission', OJ L 145, 31/05/2001, p. 43-48.

[42] For a brief overview on the evolution towards a general access to documents of the EU institutions read Berge, A., Improved rules on public access documents?, Stockholm University, http://www.rz.uni-frankfurt.de/~sobotta/thesisart255.doc, 27/7/2002, 76 p.

[43] European Parliament Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, Draft Report Opinion on the proposal for a directive of the European Parliament and of the Council on the re-use and commercial exploitation of public sector documents, Provisional, 25/11/2002, p. 5.

[44] Perrit, H.H. Jr., 'Commercialization of Government Information: Comparisons Between the European Union and the United States', Internet Research, Vol. 4, Nr. 2, 1994, p. 14.

[45] Like for example in England because of the Crown Copyright.

[46] Papapavlou, G., Public Sector Information Initiatives in the European Union, 1999, http://webworld.unesco.org/infoethics2000/documents/paper_papapavlou.rtf, 11/7/2002, p. 3.

[47] Professor James Boyle notes that the distinction between 'public' and 'private' information is inspired by stereotypes which find their origins in liberal assumptions about property, society and privacy. These stereotypes often lead to (contradictory) tensions and are 'solved' by way of a romantic idea about the information creator or author. Since we are convinced that the latter is creating something original out of nothing, we are convinced that he should be rewarded for it with honor and property rights. Boyle, J., Shamans, Software and Spleens: Law and the Construction of the Information Society, London, Harvard University Press, 1996, p. 25.

[48] Weiss, P.N., & Backlund, P., 'International Information Policy In Conflict: Open and Unrestricted Access versus Government Commercialization. Will Inconsistent Government Policies Inhibit Development of a Global Information Infrastructure?', Harvard Information Infrastructure Project, 1996, http://www.ksg.harvard.edu/iip/GIIconf/weiss.html, 15/7/2002, p. 1.

[49] Gellman, R., 'The American model of access to and dissemination of public information', Stockholm 1996 Conference: Access to Public Information: A key To Commercial Growth and Electronic Democracy, 1996, http://europa.eu.int/ISPO/legal/stockholm/en/gellman.html, 16/7/2002, p. 3.

[50] Gellman means the ability of an information creator who cannot copyright information to exercise, in whole or in part, the powers granted to a copyright owner. Gellman, R., 'The American model of access to and dissemination of public information', Stockholm 1996 Conference: Access to Public Information: A key To Commercial Growth and Electronic Democracy, 1996, http://europa.eu.int/ISPO/legal/stockholm/en/gellman.html, 16/7/2002, p. 4.

[51] Paperwork Reduction Act of May 22, 1995, Public Law, 104, 13, 167, http://www.cio.noaa.gov/itmanagement/pra.htm, 17/7/2002, 22 p.

[52] (d), § 3506, Paperwork Reduction Act of May 22, 1995, Public Law, 104, 13, 174, http://www.cio.noaa.gov/itmanagement/pralaw.pdf, 17/7/2002, p. 12.

[53] OMB Circular No. A-130 Revised, 8 February 1996, http://www.whitehouse.gov/omb/circulars/a130/a130trans4.html, 19/09/2002, 78 p.

[54] X, Commercial Exploitation of Europe's Public Sector Information - Final Report, Surrey, England, Pira International, 2000, http://www.cordis.lu/econtent/studies/studies.htm, 9/7/2002, p. 100.

[55] Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ231.104.pdf, 19/9/2002, 8 p.

[56] Gellman, R., 'The American model of access to and dissemination of public information', Stockholm 1996 Conference: Access to Public Information: A key To Commercial Growth and Electronic Democracy, 1996, http://europa.eu.int/ISPO/legal/stockholm/en/gellman.html, 16/7/2002, p. 4.

[57] County of Suffolk v. Experian Information, 2nd Cir., 25 July, 2001 quoted in Gellman, R., 'The Foundations of United States Government Information Dissemination Policy', ITA Access to and Ownership of Public Sector Information, international symposium, Vienna, 7 December, 2001, p. 5.

[58] One explanation might be that in Europe the opportunities regarding electronic commerce of personal data, has won it over those a general right of access to information could offer. The preference for this aspect of data protection, confidentiality, matched the prevailing idea on information within the different governments of Europe at that time. Burkert, H., Public Sector Information: Some Implications for a European Information Infrastructure, Paper, 1995, http://herbert-burkert.net/ARCHIV/1995-09-00-Vienna.pdf, 11/7/2002, p 9.

[59] Perrit, H.H. Jr., 'Commercialization of Government Information: Comparisons Between the European Union and the United States', Internet Research, Vol. 4, Nr. 2, 1994, p. 16. Although within the U.S. initiatives have been taken to introduce a data-protection law similar to Europe (for example the recently at the House of Representatives introduced proposition H.R. 1858), the idea remains that such laws would be contrary to the federal constitution.

[60] Perrit, H. H. Jr., Rustad, Z., 'Freedom of Information Spreads to Europe', Government Information Quarterly, Vol. 17, Nr. 4, 2000, p. 404.

[61] X, Verslag Studiedag 'Transparante Overheidsinformatie in Vlaanderen', http://www.law.kuleuven.ac.be/icri/education/ohinfo/verslag.pdf, 11/7/2002, p. 3.

[62] Wet betreffende de openbaarheid van bestuur (Law regarding the publicity of administration), 11 April 1994, Moniteur Belge, 30 June 1994, amended by the law of 25 June 1998, Moniteur Belge, 4 September 1998, and amended by the law of 26 June 2000, Moniteur Belge, 15 July 2000.

[63] Decreet van de Vlaamse Gemeenschap betreffende de openbaarheid van bestuur (Decree of the Flemish Region regarding the publicity of administration), 18 May 1999, Moniteur Belge, 15 June 1999.

[64] Ordonnantie betreffende de openbaarheid van bestuur (Ordonnance on the publicity of administration), 26 June 1997, Moniteur Belge, 20 September 1997.

[65] Wet betreffende de openbaarheid van bestuur in de provincies en gemeenten (Law regarding the publicity of administration in the provinces and municipalities), 12 November 1997, Moniteur Belge, 19 December 1997.

[66] Article 10 Wet betreffende de openbaarheid van bestuur (Law regarding the publicity of administration) 11 April 1994; Article 6 § 4 Decreet van de Vlaamse Gemeenschap betreffende de openbaarheid van bestuur (Decree of the Flemish Region regarding the publicity of administration), 18 May 1999; Article 16Ordonnantie betreffende de openbaarheid van bestuur (Ordonnance on the publicity of administration), 26 June 1997; Article 11 Wet betreffende de openbaarheid van bestuur in de provincies en gemeenten (Law regarding the publicity of administration in the provinces and municipalities), 12 November 1997.

[67] X, Verslag Studiedag 'Transparante Overheidsinformatie in Vlaanderen, http://www.law.kuleuven.ac.be/icri/education/ohinfo/verslag.pdf, 11/7/2002, p. 3.

[68] However, exceptions do exist, like the 1994 act that introduced the National Technical Information Service as part of the federal Department of Commerce, as a clearinghouse for the collection and dissemination of scientific, technical and engineering information created by other federal agencies. Since it is required to be self-sustaining, it must set prices for its information products and services that will cover its costs. One result is that the prices for many NTIS documents exceed the costs of reproduction. Gellman, R., 'The American model of access to and dissemination of public information', Stockholm 1996 Conference: Access to Public Information: A key To Commercial Growth and Electronic Democracy, 1996, http://europa.eu.int/ISPO/legal/stockholm/en/gellman.html, 16/7/2002, p. 5.

[69] Explanatory Memorandum to the Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 207 Final, 5 June 2002, http://www.cordis.lu/econtent/psi/psi_policy.htm, 22/12/2002, p. 3.

[70] Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, eEurope 2002: Creating a framework for the exploitation of public sector information, COM (2001) 607 Final, 23/10/2001, http://www.cordis.lu/econtent/psi/psi_policy.htm, 17/6//2002, p. 7.

[71] See article 1 of the proposed directive.

[72] As pointed out before, the approach of considering the access to and the use of government information as two conceptual different activities is typical European.

[73] It particularly concerns exceptions to : documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as defined by law or common administrative practice, documents or parts for which third parties hold intellectual property rights, documents containing personal data (unless the re-use of such personal data is admissible under the provisions of Community law and national measures on the processing of personal data and the protection of privacy)documents held by public broadcasters and their subsidiaries, documents held by educational and research establishments and documents held by cultural establishments.

[74] See article 1 and 3 of the proposed directive.

[75] Explanatory Memorandum to the Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 207 Final, 5 June 2002, http://www.cordis.lu/econtent/psi/psi_policy.htm, 20/12/2002, p. 9.

[76] See article 5, 1st section of the proposed directive.

[77] Explanatory Memorandum to the Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 207 Final, 5 June 2002, http://www.cordis.lu/econtent/psi/psi_policy.htm, 20/12/2002, p. 10.

[78] See article 5 2nd Section of the proposed directive.

[79] These are the exceptions mentioned in article 1 and 3 of the proposed directive, see supra footnote 73.

[80] Although at first sight this principle of non-discrimination seems to apply both to the commercial and non-commercial re-use of government information, the proposal nevertheless makes a distinction. In particular in article 7, section 1 & 2. As to the conditions for non-commercial re-use of public sector information, they also have to apply in a non-discriminatory way, but only with regard to comparable categories of re-users. This raises the question why for non-commercial purposes the principle of non-discrimination would only apply to comparable categories of re-users, while in the case of commercial purposes the non-discrimination principle applies independently of whether comparable categories of users are involved.

[81] See article 7, 3rd section of the proposed directive. However, again a remark has to be made. Since at the end of article 7, section 3 sets as a condition "where re-use is allowed", one might wonder who will judge the fact of information being allowed or not. If it is the government or agency itself that is going to judge, the danger exists of being judge and party at the same time. This would unfairly disadvantage potential competitors to the governments' or agency's commercial activities, and as such, circumvent the principle of non-discrimination.

[82] See article 6 of the proposed directive.

[83] See article 8 of the proposed directive.

[84] Explanatory Memorandum to the Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 2 07 Final, 5 June 2002, http://www.cordis.lu/econtent/psi/psi_policy.htm, 20/12/2002, p. 10.

[85] See article 10 of the proposed directive.

[86] Explanatory Memorandum to the Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector documents, COM(2002) 207 Final, 5 June 2002, http://www.cordis.lu/econtent/psi/psi_policy.htm, 20/12/2002, p. 11.

[87] Explanatory Memorandum to the Proposal presented by the Commission for a European Parliament and Council Directive on the re-use and commercial exploitation of public sector information, COM(2002) 207 Provisional Version, 5 June 2002, http://www.cordis.lu/econtent/psi/psi_policy.htm, 20/12/2002, p. 11.