While advances in web technology make it ever easier to implement interoperable Spatial Data Infrastructures, several data related policy issues remain to be harmonised across institutions, within governments and across borders. Since all government created or managed geospatial data is also Public Sector Information (PSI) by definition, several projects that are investigating PSI legal issues exist, of which LAPSI is only one. This feature article looks at some of the developments within LAPSI that are pertinent to geospatial data stakeholders (owners and users).
The LAPSI Project is co-funded by the EU's Information and Communications Technologies Policy Support Programme ("ICT PSP") and is examining a range of issues relating to access to, use and re-use of, Public Sector Information (PSI). The project aims to build a network that will become the main European point of reference for high-level policy discussions and strategic action on all legal issues related to the access and the re-use of the PSI, namely in the digital environment, i.e. any information generated and collected by public sector bodies. Thus, developments relating to PSI policy issues relate very directly to all geospatial data arising from the activities of public sector bodies.
The project comprises six working groups, as listed below:
Working Group 01: Intellectual Property and Competition Law aspects of PSI;
Working Group 02: Privacy Aspects of PSI between Private and Public law;
Working Group 03: Selected Implementation and Deployment Issues;
Working Group 04: Licensing of PSI: PSI-holders’ Perspectives, Re-users’ Perspectives and Redress Mechanisms;
Working Group 05: PSI and Cultural Content;
Working Group 06: Constitutional, Human Rights and Environmental Perspectives.
The activities and policy papers produced by Working Groups 1, 2 and 4 are highly relevant to those working with geospatial data collected by the public sector.
WG 1 - Intellectual Property and Competition Law aspects of PSI
WG 1 focuses on the interaction between Intellectual Property and Competition Law aspects of PSI. The WG is identifying IPR ownership regimes relating to data generated, collected and organized by PSI holders.
The discussion will then consider the extent to which IPR protection is a necessary incident to the activity of methodically and systematically collecting and organizing PSI and whether the additional layers of exclusive rights can be reconciled with the interest to the free access and use of data, including public domain information, available to PSI-holding entities. The WG also will analyze the role antitrust rules play in maximizing the opportunities connected to PSI use and re-use. Competition law, as a general purpose tool intended to counter market power, is considered to the extent that it could be an antidote to practices which PSI holders wish to engage in, e.g. by subjecting to antitrust scrutiny the exclusionary impact of exclusive control of PSI or access restrictions to it, by questioning when and to which extents PSI may be considered an “essential facility”, by investigating which behavior by PSI-holding entities may be justified in the light of their general interest mission and which one is not.
The following two policy recommendations, accessible from the project wiki, have been developed by this WG over the course of the project. Note that, while geospatial data per se is not referenced in the documents,
- Policy recommendation regarding the interface between the protection of commercial secrecy and the reuse of public sector information.
- Policy recommendations as to the competitive issues that the re-use of PSI raises.
WG 2 - Privacy Aspects of PSI between Private and Public Law
WG 2 looks at privacy aspects of PSI, which are highly relevant to use, re-use - and misuse - of geospatial (location based) PSI. According to the principles underpinning current privacy law in Europe, which enables each individual to control their personal and sensitive information, the free use and re-use of PSI can be blocked, leading to tension between public and unrestricted access to the PSI and the legitimate interest of European citizens not to have their personal and sensitive information, held as PSI, unduly disclosed. This is true even when the data are in the public domain according to property and contract law.
Compliance with privacy law is a prerequisite for entities which intend to access and re-use PSI. To maximize compliance and to minimize the burdens connected with it, a mix of technological and administrative law tools could be resorted to also for the purpose of creating a well functioning redress mechanism. Current analysis has shown that potential re-users often are discouraged from resorting to PSI as a result of lack of quick and effective remedies against failure to act or delays by PSI holders if complaints arise. As a result of this work, the following policy recommendations have been developed.
- Policy recommendation on privacy.
WG 4 - Licensing of PSI: PSI-holders’ Perspectives, Re-users’ Perspectives and Redress Mechanisms
WG 4 is investigating the consistency between rules concerning output (PSI re-use licenses) and input (rights acquired by PSI-holding entities from employees and independent third party contractors), leading to a variety of questions. One question is related to the transaction costs for multiple layers of protection and the legal mechanisms in Member States’ and EU IPR laws providing for rights divisibility. Another is the still outstanding issue of orphan works. The WG also looks at the concept of “sharing” in PSI generation, preservation and dissemination, e.g. which kinds of licenses simplify this approach, how DRM may be functional to the “sharing” purpose and rationale for banning exclusivity or for restricting the duration of exclusivity, including the rights arising from digitization.
The WG is also investigating the territorial dimension of licenses, e.g. cross-border issues such as the implications of any territorial limit to PSI re-use authorizations and licenses. Finally the WG is focusing on PSI re-use pricing, i.e. how to strike a reasonable price for some re-uses of PSI which is generated, collected, preserved and made available thanks to taxpayers money? There have been several reports in the past few years looking at pricing and charging for PSI re-use in the geospatial and non-spatial information worlds.
While no policy position has yet been produced by this WG, below are links to some of the more recent reports on PSI licensing, pricing and charging issues that apply directly to the geospatial PSI holding – and using - communities. Several of the reports are the result of examination of legal issues, best practice, etc. for licensing of data holdings of major national government geospatial owners, such as the national mapping and cadastral agencies and geological surveys.
“Aspects of a Licensing and Pricing Model for a Multi-Producer pan-European Data Product” by Jaana Mäkelä in International Journal of SDI Research (2011).
“A Review of Rationale for Allocating Costs and Payments in Producing and Supplying Public Sector Information” (Part A of 2 Parts – Chapters 1, 2 and 3) by Dr John S Cook – 13 March 2011 Version (234 pp) – available under CC licence (2011).
“Best practice for a licensing policy (including pricing and geo rights management)” from ESDIN Project (Underpinning the European spatial Data Infrastructure with a Best Practice Network) (Nov 2010).
“Final License models for End-users, Value Added Resellers and Service providers (electronic click licence)” from ESDIN Project (Underpinning the European spatial Data Infrastructure with a Best Practice Network) (Nov 2010).
“Guidelines to the Best Practice for a licensing policy (D 4.4)” from ESDIN Project (Underpinning the European spatial Data Infrastructure with a Best Practice Network) (Nov 2010).
"D7.2 – Code of practice on access, licensing and pricing" from OneGeology-Europe Project (2010).
“Analysis of existing legal framework” from OneGeology-Europe Project (2009).
"IPR and Licensing issues in Derived Data” by Naomi Korn, Professor Charles Oppenheim and Charles Duncan (2007).
Article by Roger Longhorn, Editor, SDI Magazine - This email address is being protected from spambots. You need JavaScript enabled to view it.
Member Advisory Board, LAPSI Project
