Analysis Of Second Reading Amendments

On the 21st March, the Environment, Public Health and Food Safety Committee of the European Parliament geographic data technologies meets to discuss the amendments to the Council’s altered draft of the INSPIRE Directive. Some of these amendments remove the clauses added by the Council that prevent public access to data due to intellectual property rights. This page picks out the specific amendments that people in favour of public access to geodata should urge MEPs to support.

In writing to your MEP, it is best to be really specific about the reasons why certain amendments should be accepted or rejected. Hard numbers about economic evidence are best; excerpts from studies showing the clear benefits of the right to openly access and freely re-use state-collected geographic data would be most useful. It’s important to do this before the ENVI Committee March 21st Meeting.

Contents

  1. Amendment 2 (right to “view” public geodata)
  2. Amendment 4 (right of agencies to charge for access to public information)
  3. Amendment 5 (INSPIRE’s affect on existing “intellectual property rights”)
  4. Amendment 9 (qualifying how INSPIRE relates to 2003/4/EC)
  5. Amendment 18 (against limiting access to discovery services)
  6. Amendment 19 (removing clause whereby intellectual property rights mean data is not subject to INSPIRE rules)
  7. Amendment 21 (both searching and viewing of public geodata should be free of cost)
  8. Amendment 22 (view services should be made freely available)
  9. Amendment 24 (how costs are decided on in a pricing policy)
  10. Amendment 27 (deletion of clause on preserving “intellectual property rights” coming before data sharing)

Amendment 2 (right to “view” public geodata)

The Council common position tried to remove the right of European citizens to view geographic data free of cost. This amendment reinstates that right in the preamble. This connects to Amendment 21 which restores that right in the Articles, accepting one means accepting the other.

FOR

Amendment 4 (right of agencies to charge for access to public information)

This amendment deletes wording added by the Council, that entrenches a monopoly pricing (aka “cost-recovery”) policy at a national level. The council’s wording describes a situation in which state agencies

 whose data are only partially subsidised by the Member state so that they have to recover the unsubsidised costs
  • (for example the UK’s National Mapping Agency, the Ordnance Survey, which is a Trading Fund, a kind of state-owned private company which receives soem public funding but pursues a proprietary policy in licensing its data.

This amendment deletes this clause, but replaces it with one very similar to one from the Public Sector Information Directive about how any agency that collects and holds public data, can justify charging the public for access to data:

 the costs should not exceed the costs of collection, production, reproduction and dissemination'''.

This Amendment connects to Amendment 24, which introduces the same wording on how costs can be justified, into Article 17 of the main body of the Directive; accepting Amendment 4 also implies accepting Amendment 24.

This is a very difficult amendment because it both removes text that entrenches a restrictive licensing policy for geodata but also introduces wording that states that charging the public for access is definitely justified. Both Amendment 4 and Amendment 24 should probably be two separate amendments.

From the perspective of encouraging public access to geodata, it’s hard to be either for or against this amendment. It both deletes a clause guaranteeing the right to pursue a proprietary licensing policy, and adds a clause dictating the terms on which the public can be charged for data.. It looks like an amendment that should not have been accepted, or should be two separate amendments.

Amendment 5 (INSPIRE’s affect on existing “intellectual property rights”)

 22(a) The provisions of this Directive do not affect the existence or ownership of public sector authorities' intellectual property rights 

This is an amendment to the recital which adds a clause in favour of allowing intellectual property rights to exempt public geodata from the requirements of INSPIRE.

AGAINST

Amendment 9 (qualifying how INSPIRE relates to 2003/4/EC)

This amendment changes the wording of Article 2 which discusses how INSPIRE relates to 2003/04/EC, the Directive on public access to environmental information.

 This Directive is without prejudice to Directives 2003/4/EC save where otherwise provided

Full text of 2003/04/EC (PDF) HTML version

2003/4/EC provides a list of cases public requests for access to state-collected environmental information can be refused. One of those cases, unsurprisingly, is that of intellectual property rights in state-collected, taxpayer-funded data.

For where otherwise provided, we have to look at the change which is covered in Amendment 18. Amendments 9 and 18 work as a pair.

FOR

Amendment 18 (against limiting access to discovery services)

Amendment 18 trumps the intellectual property rights get-out clause that is contained 2003/4/EC. This amendment reinstates wording to INSPIRE that was proposed by the Commission and removed by the Council. The addition in the amendment is the following:

 By way of derogation from Article 11(1) of this Directive 

to read

By way of derogation from Article 4(2) of Directive 2003/4/EC and Article 11 of this Directive

Article 4(2) of Directive 2003/4/EC provides a list of exceptions which allow data providers to refuse public requests for public data. It covers the usual legal and judicial confidentiality, personal data protection, exceptional rare species which might be threatened by disclosing their location, but also commercial interest (as in the Public Sector Information directive) and intellectual property rights.

This is essentially a good amendment, which states, even if directive on access to public environmental information allows agencies to refuse the public access to their data, then INSPIRE should guarantee that this data can at least be searched for and viewed, even if not made available for download. It is in the interests of public access to geodata to be for this directive.

This amendment becomes a lot stronger if Amendment 19 is also accepted, otherwise INSPIRE also carries a clause which allows public agencies to refuse the public access to data on the grounds of intellectual property rights.

FOR

Amendment 19 (removing clause whereby intellectual property rights mean data is not subject to INSPIRE rules)

 (e) intellectual property rights

This is an amendment to delete the clause added by the Council which covers exemptions to making access to data available under INSPIRE. If this amendment is not approved, then any agency which has currently commercial copyright over its data will be under no obligation to share it under INSPIRE.

FOR

Amendment 21 (both searching and viewing of public geodata should be free of cost)

This is a crucial amendment which deletes the clause added by the Council whereby existing licensing terms and costs can prevent public access to geodata. The Council’s extra clause states that “view services” can be exempted from the terms of INSPIRE where

 in cases where charges or licenses are an essential precondition for maintaining the spatial data sets and services... Member States may apply charges and/or licenses either to the person providing the service to the public, or, where the service provider chooses, to the public itself. 

Charging the public even to view, let alone download the data they have paid to collect is against the spirit of the draft Directive and actively harmful to the prospects of civic or commercial re-use of geodata.

FOR

Amendment 22 (view services should be made freely available)

Where the Council version reads, in regards to view, download and transformation services,

 Such services may be covered by disclaimers, click-licenses or licenses

This amendment removes the reference to licenses, shortening Article 14(3) just to read disclaimers or click-licenses.

This is another crucial amendment which if it is passed, removes at least one barrier to more public access to geodata.

FOR

Amendment 24 (how costs are decided on in a pricing policy)

See discussion of Amendment 4, which basically looks like a bad amendment, for detail on why this Amendment to Article 17 on the terms under which data should be shared, is so difficult. Again, this amendment has two significant changes of wording. The text to be deleted reads:

 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 pulbic authorities or institutions and bodies of the Community that use these spatial data sets and services. 

The amended text is subtle in how it relates to paragraph 2, and just makes the emphasis on charging users for access kess strong, rather than removing it:

 Without prejudice to paragraph 2, Member States may allow public authorities that supply spatial data sets and services to license them to, and/or require payment from, the public authorities or institutions and bodies of the Community that use these spatial data sets and services. In any event, where charges are made, the total income from supplying documents shall not exceed the cost of collection, production, reproduction and dissemination.

Paragraph 2 of Article 17 states

 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 

Paragraph 1 in its turn says more or less that Member States should share geodata relating to environmental concerns between its public authorities for public tasks. It does not guarantee members of the public any rights to gain access to public geodata at all.

We know that for digital distribution of data, the cost of releasing the same data set to a second and Nth person tends towards zero; “the cost of collection, production, reproduction and dissemination” is hard to quantify for the distribution of digital data. It seems as if this amendment is actually more in favour of a monopoly pricing policy than the clause which it replaces, which just says, INSPIRE shall not prevent agencies from selling data.

Analysis Of INSPIRE Text talks a bit more about how Article 17 has mutated over the history of the Directive. Of the Arguments in favour of public access to geodata, the PIRA study on effective reuse of public sector information is the most relevant here.

On balance, it may be best to vote AGAINST this Amendment and Amendment 4.

Amendment 27 (deletion of clause on preserving “intellectual property rights” coming before data sharing)

This deletes a clause added by the Council which offers intellectual property rights as a get-out clause against making data available under Article 17;

 This Article does not affect the existence or ownership of public sector authorities' intellectual property rights.

FOR the deletion of this clause.