EU Directive on Public Sector Information: a Quick Look at the Proposed Amendments

It's been a shockingly long time since I posted anything on my blog - apologies for that. But things are picking up in the education and copyright world, so expect to hear a lot more in 2013! I thought I'd take the opportunity to have a quick look at the tabled amendments to the EU's Directive on Public Sector Information. This is going to plenary in the first half of 2013 and it looks like it will become fully fledged legislation shortly after.

The original PSI Directive (adopted by the UK in 2005) does not apply to documents held by educational and research establishments, such as schools and universities, and also does not apply to documents for which third parties hold intellectual property rights. The proposed amendments (inconveniently held in two separate documents, one short one which provides the context and the initial text of the Commission , and the 70 page list of amendments to that text) will however remove the exemption for public service broadcasters and their subsidiaries, and specifically mentions university libraries as separate from universities themselves (more on that later). A document is defined as any type of work, including software source code and broadcasts.

But it is the cultural heritage sector which is most concerned with the amendments being proposed. Libraries, archives, museums and public bodies managing archaeological and cultural sites will become subject to the Public Sector Information Regulations and therefore will be required to respond to requests for re-use of their documents and data. However, there are a number of criteria which, if the amendments are accepted, will apply to the cultural heritage sector (note that the PSI Directive ONLY applies to material for which the organisation holds the copyright - any documents for which the copyright is held by a third party are exempt):

1. The cultural heritage sector should be allowed to charge more for the re-use of their documents than other public sector bodies.Charges should be set according to objective, transparent and verifiable criteria (the Directive doesn't elaborate on how this will be achieved);
2. Conditions for re-use must be imposed on the user (at the very least, attribution of source). Re-use may be for either commercial or non-commercial purposes;
3. Documents held which are of a particularly sensitive religious nature or that involve traditional knowledge (no definition of what traditional knowledge is) are exempt;
4. Where there is third party copyright in a document, the library, archive or museum is not required to refer the requestor to the third party rightsholder (this feels a bit out of keeping with the public service ethic of helping people...);
5. Complying with the request for re-use should not involve disproportionate effort - it feels as though the Directive is a little conflicted here, as in one part it mentions that documents should be made available via machine-readable formats in a way that ensures interoperability, yet later it suggests that there should be no obligation for a body to create, adapt or digitise documents to comply with a request. This will be solved at the plenary stage, I imagine, as these are suggestions by a number of individuals.
6. Exclusive arrangements already in existence should be made transparent;
7. Exclusive arrangements to digitise information and data of a cultural nature may be made but will be limited to a number of years, after which the digital copies may be re-used. The terms of the Directive will not be retrospective but will permit exclusive licences negotiated after the date from which the Directive comes into force to run for a number of years. The organisation with which the exclusive arrangement is made must provide digital copies of the material to the library or archive. Once the exclusive arrangement has terminated, there is nothing to stop the library or archive to make the material available on a subscription-only basis. Cultural institutions are still free to choose organisations for public-private partnerships.

At the moment there are lots of suggestions but it's unlikely that these will take long to pin down, so expect this (or a similar form of this) to become law in 2013. I mentioned the university libraries earlier as not being exempt from this Directive: there's a curious statement on page 25/70 of the proposed amendments which says:

This amendment is intended to clarify that the directive does not apply to documents held by a library which forms part of the university which holds the intellectual property right (IPR) in the document. A university and its libraries may constitute a single legal entity. Without amendment, the exclusion of documents subject to third-party IPR would not apply where a library holds the document but the IPR is held by the university because the university would not be a separate (i.e. third) party.

My personal thoughts on this statement is that the last 'not' shouldn't be there, but I have emailed the PSI Directive people over at the EU and eagerly await their response... I'll keep you posted. In the meantime, if anyone could shed any light on this, that would be useful!