Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information Text with EEA relevance

• Published date: 27 June 2013
• Official Gazette Publication: Official Journal of the European Union, L 175, 27 June 2013

27.6.2013 EN Official Journal of the European Union L 175/1

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DIRECTIVE 2013/37/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 26 June 2013

amending Directive 2003/98/EC on the re-use of public sector information

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1) Documents produced by public sector bodies of the Member States constitute a vast, diverse and valuable pool of resources that can benefit the knowledge economy.

(2) Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (3) establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States.

(3) Open data policies which encourage the wide availability and re-use of public sector information for private or commercial purposes, with minimal or no legal, technical or financial constraints, and which promote the circulation of information not only for economic operators but also for the public, can play an important role in kick-starting the development of new services based on novel ways to combine and make use of such information, stimulate economic growth and promote social engagement. However, this requires a level playing field at Union level in terms of whether or not the re-use of documents is authorised, which cannot be achieved by leaving it subject to the different rules and practices of the Member States or the public sector bodies concerned.

(4) Allowing re-use of documents held by a public sector body adds value for the re-users, for the end users and for society in general and in many cases for the public body itself, by promoting transparency and accountability and providing feedback from re-users and end users which allows the public sector body concerned to improve the quality of the information collected.

(5) Since the first set of rules on re-use of public sector information was adopted in 2003, the amount of data in the world, including public data, has increased exponentially and new types of data are being generated and collected. In parallel, we are witnessing a continuous evolution in technologies for analysis, exploitation and processing of data. This rapid technological evolution makes it possible to create new services and new applications, which are built upon the use, aggregation or combination of data. The rules adopted in 2003 no longer keep pace with these rapid changes and as a result the economic and social opportunities offered by re-use of public data risk being missed.

(6) At the same time, Member States have now established re-use policies under Directive 2003/98/EC and some of them have been adopting ambitious open data approaches to make re-use of accessible public data easier for citizens and companies beyond the minimum level set by that Directive. To prevent different rules in different Member States acting as a barrier to the cross-border offer of products and services, and to enable comparable public data sets to be re-usable for pan-European applications based on them, a minimum harmonisation is required to determine what public data are available for re-use in the internal information market, consistent with the relevant access regime.

(7) Directive 2003/98/EC does not contain an obligation concerning access to documents or an obligation to allow re-use of documents. The decision whether or not to authorise re-use remains with the Member States or the public sector body concerned. At the same time, Directive 2003/98/EC builds on national rules on access to documents and allowing re-use of documents is therefore not required under that Directive where access is restricted (for example, national rules restrict access to citizens or companies who prove a particular interest in obtaining access to documents) or excluded (for example, national rules exclude access because of the sensitive nature of the documents based, inter alia, on grounds of national security, defence, public security). Some Member States have expressly linked the right of re-use to a right of access, so that all generally accessible documents are re-usable. In other Member States, the link between the two sets of rules is less clear, and this is a source of legal uncertainty.

(8) Directive 2003/98/EC should therefore be amended to lay down a clear obligation for Member States to make all documents re-usable unless access is restricted or excluded under national rules on access to documents and subject to the other exceptions laid down in this Directive. The amendments made by this Directive do not seek to define or to change access regimes in Member States, which remain their responsibility.

(9) Taking into account Union law and the international obligations of Member States and of the Union, particularly under the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights, documents for which third parties hold intellectual property rights should be excluded from the scope of Directive 2003/98/EC. If a third party was the initial owner of the intellectual property rights for a document held by libraries, including university libraries, museums and archives and the term of protection of those rights has not expired, that document should, for the purpose of this Directive, be considered as a document for which third parties hold intellectual property rights.

(10) Directive 2003/98/EC should apply to documents the supply of which forms part of the public tasks of the public sector bodies concerned, as defined by law or by other binding rules in the Member States. In the absence of such rules the public tasks should be defined in accordance with common administrative practice in the Member States, provided that the scope of the public tasks is transparent and subject to review. The public tasks could be defined generally or on a case-by-case basis for individual public sector bodies.

(11) This Directive should be implemented and applied in full compliance with the principles relating to the protection of personal data in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (4). In particular, it is worth noting that, according to that Directive, the Member States should determine the conditions under which the processing of personal data is lawful. Furthermore, one of the principles of that Directive is that personal data must not be processed further to collection in a way incompatible with the specified, explicit and legitimate purposes for which those data were collected.

(12) Directive 2003/98/EC should be without prejudice to the rights, including economic and moral rights that employees of public sector bodies may enjoy under national rules.

(13) Moreover, where any document is made available for re-use, the public sector body concerned should retain the right to exploit the document.

(14) The scope of Directive 2003/98/EC should be extended to libraries, including university libraries, museums and archives.

(15) One of the principal aims of the establishment of the internal market is the creation of conditions conducive to the development of Union-wide services. Libraries, museums and archives hold a significant amount of valuable public sector information resources, in particular since digitisation projects have multiplied the amount of digital public domain material. These cultural heritage collections and related metadata are a potential base for digital content products and services and have a huge potential for innovative re-use in sectors such as learning and tourism. Wider possibilities for re-using public cultural material should, inter alia, allow Union companies to exploit its potential and contribute to economic growth and job creation.

(16) There are considerable differences in the rules and practices in the Member States relating to the exploitation of public cultural resources, which constitute barriers to realising economic potential of those resources. As libraries, museums and archives continue to invest in digitisation, many already make their public domain content available for re-use and many are actively seeking out opportunities to re-use their content. However, as they operate in very different regulatory and cultural environments, the practices of cultural establishments in exploiting content have developed in disparate ways.

(17) Since the differences in national rules and practices or the absence of clarity hinder the smooth functioning of the internal market and the proper development of the information society in the Union, minimum harmonisation of national rules and practices on the re-use of public cultural material in libraries, museums and archives should be undertaken.

(18) The extension of the scope of Directive 2003/98/EC should be limited to three types of cultural establishments – libraries, including university libraries, museums and archives, because their collections are and will increasingly become a valuable

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