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knowledge 21 July 2021 |

Update on the Open Data and Re-Use of PSI Regime

Directive (EU) 2019/1024 on open data and the re-use of public sector information (the “Open Data Directive”) was adopted by the European Commission on 20 June 2019 and replaces the previous legal framework governing the release of public sector information for re-use introduced by Directive 2003/98/EC1. The Open Data Directive aims to address the remaining barriers to the re-use of publicly funded information across the EU and to bring the legislative framework up to date with advances in digital technologies. New regulations (available here) transposing the Open Data Directive into Irish law have now been adopted (the “2021 Regulations”).

Background

Directive 2003/98/EC introduced a harmonised framework for the accessing of public sector information and was implemented in Ireland by the European Communities (Re-Use of Public Sector Information) Regulations 2005 (the “2005 Regulations”). The 2005 Regulations were subsequently amended and updated in 20082 and again in 2015 (the “2015 Regulations”)3 in order to implement changes to Directive 2003/98/EC introduced by Directive 2013/37/EC.4

Repeal of Directive 2003/98/EC

With effect from 16 July 2021, Directive 2003/98/EC is repealed by the Open Data Directive. However, many of the provisions in Directive 2003/98/EC are reflected in the Open Data Directive, Annex III of which includes a helpful correlation table setting out the corresponding Articles in each Directive.

The 2021 Regulations revoke the 2005 Regulations (as amended) and implement the Open Data Directive in Irish law (the “New PSI Regime”).

Overview of the Open Data Directive and 2021 Regulations

  • Re-use of documents free of charge: The Open Data Directive is intended to make reuse of public information easier. In a significant change to the existing regime, under the New PSI Regime, the default position is that re-use of existing documents held by both public sector bodies and public undertakings operating in specific sectors should be free of charge. The New PSI Regime also applies to the re-use of publicly funded research data.
  • Open data: The New PSI Regime imposes a positive obligation on public sector bodies and certain public undertakings to make public data available as open data (rather than on request), “in formats that are open, machine-readable, accessible, findable and re-usable, together with their metadata”.
  • Dynamic data: The New PSI Regime requires public authorities to make dynamic data “available for re-use immediately after collection, via suitable APIs and, where relevant, as a bulk download”. ‘Dynamic data’ refers to data that are updated frequently or in real time, such as meteorological data and traffic data.
  • High-value datasets: The New PSI Regime imposes an obligation to make high value datasets available for re-use free of charge in machine-readable formats and via APIs and, where relevant, as a bulk download. High-value datasets are documents the re-use of which offers significant benefits for society, the environment and the economy, as they are suitable for developing applications and value-added services that have a large number of potential beneficiaries and therefore create new, high-quality and decent jobs. The Open Data Directive defines lists of thematic categories of high-value datasets, namely: geospatial data, data on earth observation and environment, meteorological data, statistics, data on companies and company ownership and mobility data.
  • Exclusive arrangements: Article 12 of the Open Data Directive requires the re-use of documents to be open to “all potential actors in the market, even if one or more market actors already exploit added-value products based on those documents”. Under the New PSI Regime, contracts or other arrangements between the public sector bodies or public undertakings holding the documents and third parties shall not grant exclusive rights. However, where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years.

Public sector bodies and undertakings that are that are within the scope of the Open Data Directive will need to review and update as necessary their policies and procedures in connection with open data and the re-use of PSI regime to ensure that they comply with the requirements of the New PSI Regime. Other stakeholders may be interested to explore the opportunities that this open data initiative will generate.

Also contributed by Ruth Hughes.

  1. Directive 2003/98/EC on the re-use of public sector information
  2. The European Communities (Re-Use of Public Sector Information) (Amendment) Regulations 2008
  3. SI No 525 of 2015
  4. Directive 2013/37/EC on the re-use of public sector information

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.