Hello all. My primary interest is open energy sector data for building open energy system models. I recently coordinated a community submission on the current (2013) re-use of public sector information (PSI) directive and also provided evidence in person in Brussels. Open energy system modelers are highly reliant on what the European Commission terms privately held data of public interest. Many modelers are also active in scientific research. Specific thoughts follow, based on COM/2018/234 unless otherwise indicated.
Sui generis database rights
We suggested European sui generis database rights be removed for PSI providers because it makes no sense to restrict downloading under this currently ill-resolved economic right. That provision seems to be clarified under revised article 1 (6) (see page 10).
Privately held data
As indicated, energy system modelers are highly reliant on privately held data of public interest. It seems little progress was made on this theme, despite having being flagged as an issue for consultation by the Commission. Our specific request to require datasets published under the electricity market transparency directive 543/2013 be open licensed was not forthcoming.
My lay reading is that energy sector regulators, such as the German BNetzA, would classify as “public undertakings” — a term which covers but is not limited to public sector bodies or bodies governed by public law — and not private entities (definition on page 9 and referencing 2014/25/EU). But that utilities within the water, energy, transport, and postal services sectors remain outside the proposed revisions. In which case, the best option for energy modelers is to continue to argue for open licensed market transparency regulations as an issue of market integrity and not public interest PSI re-use.
Research data
The desire to provide open access to research data, while laudable in concept, is weak in practice. Well accepted definitions of “open access”, by Peter Saber for example, can mean merely public provision at no cost. This was exactly how Cambridge University described the recent release of Stephen Hawking’s PhD thesis in digital format under full copyright.
It is imperative instead to push for open data licenses such as Creative Commons CC-BY-4.0. That then allows science to be conducted the way it should be and avoids the need for researchers to otherwise operate in a legal gray zone. Such licensing is the only way that the FAIR reusability principle (Wilkinson 2016), mentioned in the proposed revisions, can be operationalized (page 7).
Open licensing
To continue, the proposed revisions are wholly inadequate in terms of open licensing. Draft recital (42) is aspirational in this regard, but far from sufficient (page 12). Arguments in our submission regarding the need for universal open licensing (or public domain dedications) on PSI did not prevail. In addition, our request for analysis on whether the machine processing of legally obtained copyright protected datasets is lawful was not traversed (this is very likely a breach of copyright).
In the absence of suitable open licensing, much of the PSI becoming available, in part through Commission policy, is simply not usable in downstream ecosystems because third parties who modify, remix, and then redistribute this information will potentially be in breach of copyright. Odd that the Commission chose to almost totally ignore this key aspect.
The consultation synopsis report (Unknown 2018) also fails to mention open licensing, despite at least one submitter making this a key theme in their written feedback. The open licensing of content and data is clearly a blind spot for the Commission.
But of course, once PSI is open licensed, its short run marginal cost of provision by intermediaries within the aforementioned ecosystem sinks to near zero. In short, the Commission has failed to grasp what open data means in terms of primary provider cost recovery. Collecting the “marginal cost for reproduction, provision and dissemination of information” by a PSI provider can only be maintained where there is either no licensing or only proprietary licensing on offer. This same principle is well understood in the free software world.
Copyrightability
That said, much of the PSI under discussion — at least in the energy domain – is simply not eligible for copyright. Moreover any proprietary license applied to material that does not attract copyright is quite possibly unenforceable. Again we asked the Commission to examine the question of copyrightability in relation to PSI but they did not.
(The misconception that one can claim copyright on measured datasets is, for instance, widespread. I recently attended a presentation by the Linux Foundation that suggested that ocean temperature measurements could be subject to copyright and therefore benefit from one of their new CDLA open data licenses.)
Closure
I think it a strategic mistake to treat the aspirational gains in these proposed revisions — such as the recommendations that APIs be offered or that cost recovery be avoided — as a substitute for clear policy on genuine open data.
And by that I mean the use of established open licenses. Indeed mention of an “open license” occurs only three times and is otherwise never discussed or defined. Contrast this with the excellent European Commission (24 July 2014) guidelines which cover open licensing in detail.
The question of copyrightability remains the elephant in the room. This is an absolutely central issue and its omission in the proposed revisions is odd to say the least.
What is nonetheless understandable although unfortunate is that the concept of privately held data of public interest fell by the wayside. In particular, a body that “operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity” (directive 2014/24/EU recital 10) is excluded from the proposed revisions, even where strong public interests apply. In which case, other less attractive avenues, including crowdsourcing, will have to suffice. We will indeed get the information we require one way or another and can then circulate it at no cost to users because the long run marginal cost of provision can more easily be funded in other ways.
In short, these proposed revisions represent a lost opportunity to make public sector information genuinely open and reusable. HTH, Robbie.
Primary references
European Commission (2018). Proposal for a revision of the Public Sector Information (PSI) Directive. Digital Single Market. Brussels, Belgium. Web page.
European Commission (25 April 2018). Proposal for a Directive of the European Parliament and of the Council on the re-use of public sector information (recast) — COM (2018) 234 final. Brussels, Belgium: Council of the European Union.
European Commission (24 July 2014). “Commission notice: guidelines on recommended standard licences, datasets and charging for the reuse of documents”. Official Journal of the European Union. C 240: 1–10.
Wilkinson, Mark D et al (15 March 2016). “The FAIR Guiding Principles for scientific data management and stewardship — Comment”. Scientific Data. 3: 160018. doi:10.1038/sdata.2016.18.
Secondary references
Unknown (25 April 2018). Consultation on PSI directive review (also known as the synopsis report on the PSI directive). Brussels, Belgium: European Commission.
European Commission (25 April 2018). Commission staff working document — Evaluation — Accompanying the document: Proposal for a Directive of the European Parliament and of the Council on the re-use of public sector information — SWD (2018) 145 final. Brussels, Belgium: European Commission.
European Commission (25 April 2018). Commission staff working document — Impact assessment — Accompanying the document: Proposal for a Directive of the European Parliament and of the Council on the re-use of public sector information — SWD (2018) 127 final. Brussels, Belgium: European Commission.
European Commission Regulatory Scrutiny Board (14 February 2018). Impact Assessment / Re-use of Public Sector Information — Opinion — Ares(2018). Brussels, Belgium: European Commission.
European Commission (28 March 2014). “Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing directive 2004/18/EC (text with EEA relevance)”. Official Journal of the European Union. L 94: 65–242.
European Commission (27 June 2013). “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)”. Official Journal of the European Union. L 175: 1—8.
European Commission (15 June 2013). “Commission Regulation (EU) No 543/2013 of 14 June 2013 on submission and publication of data in electricity markets and amending Annex~I to Regulation (EC) No 714/2009 of the European Parliament and of the Council”. Official Journal of the European Union. L 163: 1–12.