Rights restrictions on Viewing and Downloading
Articles 11 and 14 on services available
Article 14 (in the draft and Council common position, Article 17 in the EP amendments) dictates the terms by which different data services – search, view, download etc – can be made available to the public. This is the version with the first reading amendment it covers the list of services which in Article 15 (Article 11 in the common position):
In the original draft of INSPIRE this clause just read like this:
1. Member States shall ensure that the services referred to in Article 15 (1)(a) and (b) are available to the public free of charge.
The EP first reading amendments made it look like this:
1. Member States shall ensure that the services referred to in Article 15 (1)(a) and (b) are available to the public free of charge. '''In order to protect intellectual property rights held by public authorities in respect of spatial data, the data made available through the view services mentioned in Article 15 (1)(b) may be in a form preventing their re-use for commercial purposes, and a click-licence may be included to restrict the use that can be made of the data.'''
The Council common position changed this (which has become Article 14 covering 11(a-e) again) to the even more restrictive reading, no longer talking about click-use licenses:
(b) the services referred to in point (b) of Article 11(1) are, as a rule, available to the public free of charge. However, in cases where charges and/or licences are an essential precondition for maintaining the spatial data sets and services or for Member States may apply charges and/or licences either to the person providing the service to the public, or, where the service provider chooses, to the public itself.
It always costs money to maintain the data and monopoly pricing/licensing is the very basis of the ‘cost-recovery’ method of paying for this maintenance. Thus this condition can always be met and this article is tantamount to full reinstatement of the cost-recovery (monopoly-pricing) approach.
The common position adds a completely sub-clause here indicating possible DRM enforcement of IP policy:
(14.2)Data made available through the view services referred to in point (b) of Article 11(1) may be in a form preventing their re-use for commercial purposes.
Article 13 on when access to data can be restricted
This outlines the different exemptions by which NMAs and other data providers don’t need to provide the very slim amount of open access that the Council common position now allows.
(e) intellectual property rights;
So this is now stating, if there are intellectual property rights (e.g. Crown Copyright) in the data, this alone is grounds to prevent public access to data, even to search services, let alone view/download services.
Next we look at what was Article 20 in the EP version and Article 17 again in the Council common position.
20.1 ... The measures provided for in the first subparagraph shall preclude, at the point of use, any restrictions, in particular of a transactional, procedural, legal, institutional or financial nature. Member States shall ensure that the implementation of these measures does not adversely affect the availability of spatial data sets and services.
The Council common position separates this out into a separate paragraph in Article 17:
2. The measures provided for in paragraph 1 shall preclude any restrictions likely to create, at the point of use, practical obstacles to the sharing of spatial data sets and services.
Great, we think, but not so fast, read what the Council inserted after that:
3. The provisions of paragraph 2 shall not prevent public authorities that supply spatial data sets and services from licensing them to, and requiring payment from, the public authorities or institutions and bodies of the Community that use these spatial data sets and services.
Charging for access to data and precluding its re-use is basically a practical obstacle. This provides a neat get-out clause for pursuing a proprietary geodata policy.
Then here is the last new clause in Article 17, just to make sure we know where we are:
9. This Article does not affect the existence or ownership of public sector authorities' intellectual property rights.
Changes to the Preamble
In the original draft and in the EP first reading amendments the preamble states (this is clause 16)
(16) Experience in the Member States has shown that it is important, for the successful implementation of an infrastructure for spatial information, that a minimum number of services be made available to the public free of charge. Member States and the European Union should therefore make available, as a minimum and free of charge, the services for discovering and viewing spatial data sets.
In the Council common position this has changed to read:
...Member States and the European Union should therefore make available, as a minimum and free of charge, the services for discovering spatial data sets.
- random note on why this is important:
Modern maps in electronic format are databases, images are just representations of the data; it’s like being told you can view a database by seeing an uneditable PDF copy of a table dump; standards for data exchange (Web Map Service, Web Feature Service) involve downloading an XML document before viewing its contents.
This means that mapping agencies will have to invest in producing web-based “viewing” services for data that aren’t actually much use to the public; for most applications the raw data is needed; in order to figure out whether the data is useful to you, a simple “view” may not do that much good.
Not offering viewing services to the public raises the bar on how descriptive the metadata needs to be. Without being even able to view a data set, it makes it much less likely that you can tell whether you are going to need it.
Prospect of Common Commercial licensing policy
This is the clause from the draft/EP first reading version which may give the Commission carte blanche to impose a common licensing / pricing policy:
Article 21 The Commission shall, in accordance with the procedure referred to in Article 27 (2), adopt implementing rules to increase the potential of re-use of spatial data sets and services by third parties. These implementing rules may include the establishment of common licensing conditions. The establishment of common licences shall not unnecessarily restrict possibilities for re-use of data and use of services and shall not be used to restrain competition.
This clause has just completely disappeared from the Council common position. Perhaps this helps indicate why the Commission is so upset?