"Open Europe: Open Data for Open Society"

Selected legal barriers for Open dataresults from Lapsi 2.0 best practices in IP

Directive 2003/98/EC ('PSI Directive’)

Directive on the re-use of public sector information

To encourage the Member States to make as much information available for re-use as

possible.

Does it stimulate innovation and empower citizens ?

• Public sector information– wide range of information that public sector bodies collect produce

reproduce and disseminate in many areas of activity while accomplishing their institutional task

• The Directive covers written texts, databases, audio files and film fragments; – it does not apply to the educational, scientific, broadcasting and

cultural sectors.• Public sector works

– PSI that fulfills the national requirements needed by the national law to obtain copyright and sui generis database protection.

LAPSI2.0

survey on best practices in IP• Legal rules on protectability of works• Legal rules and contractual practices on rights

ownership• Legal rules and other practices implemented

within cultural institutions

Protectability

copyright• International– Berne convention art 2(4) : its up to member

states to define • European

Protectability

copyright:• International• European– No definition of what is public sector work– No harmonisation of copyright– only partial harmonisation of originality (authors

own intellectual protection)• Originality is treshold for database protection and

software

Protectability

Sui generis database right

• European directive– Non-original databases – Substantial investment (qualitative or quantative) – Protection against systematic copying of

substantial parts

Protectability of PSW

I. Exempted from copyrightI. Broad exemption from protection means all PSI

and PSW are in the public domainI. Example czech republic, poland, austria, norway

II. Narrow copyright protectionIII. Copyright protected

Protectability of PSW

I. Exempted from copyrightII. Narrow copyright protection

I. Most countries have list of psw excluded from protection o.a. legislation,administrative decisions etc

I. Germany, netherland, belgium,itlay,slovenia hungary

III. Copyright protected

Protectability of PSW

I. Exempted from copyrightII. Narrow copyright protectionIII. Copyright protected

I. including legal and official texts no exemption in national law

II. Standard national copyright rules applyI. Including the limitations such as private copying,

teaching exemptions etcII. Limited term of protection (70 years)

III. England: crown copyright regime

Protectability and practices

Recommended• IP protection but only for

integrity check– UK : Crown copyright all is

protected under Crown copyright but available under Opengov licence v2.0

• IP protection but not exercised– Romania free re-use results in

competitive market on court decisions

Not recommended

Protectability and practices

Recommended Not recommended• Instead of IP protection

PSW become subject of exclusive agreements– Czech Republic exclusive

agreements for publishing PSW

• Absence of regulation leads to adhoce rules

Transfer or Rights

• Made by– Employees • Most common is automatic transfer to employer• Some :only if contractual, or lack regulation

– Third parties• Usually no specific provisions so general copyright rules

apply = license for re-use is needed

Trend to standardize procedures

Transfer or Rights

Trend to standardize procedures

Is this a good thing ?

- Should governments use standards in their contracts that all IP belongs to them ?

- Denial of access justified when rights held by third party ?

Availability of data from cultural institution

• Cultural institutions as PSB– Scope of the new directive is unclear, most likely

national definition is leading• Metadata produced by• Acces to metadata• Digitization

Availability of data from cultural institution

• Cultural institutions as PSB• Metadata produced by CI– Absence of specific rules so general copyright or

sui generis database rights apply– If produced in pursuit of cultural institutions public

task: common public sector work• Acces to metadata• Digitization

Availability of data from cultural institution

• Cultural institutions as PSB• Metadata produced by• Acces to metadata– Digitization of content and proper categorization is

pre-requisite for access and re-us of the respective metadata

• Digitization

Availability of data from cultural institution

• Cultural Institutions as PSB• Metadata produced by• Acces to metadata• Digitization– Access and re-use mostly alowed for research

purposes,teaching,private purposes– Problems • Funding• Outsourcing

Availability of data from cultural institution

• Cultural Institutions as PSB• Metadata produced by• Acces to metadata• Digitization

Discussion: IP and Digitization: who owns the rights and what access should the public have (under what conditions)

Free or fee, commercial use allowed, licenses ?

Incentives for opening accessRecommended

• Examples– UK: linked open data ; access

to bibliographic metadata and reuse available uder CC0

– France: National Library; licence Ouverte

• Digitization prescribed by law for cultural institutions

Not recommended

Incentives for opening accessRecommended

• Granting research and educational licenses

• If not under public domain: negotiation with third party rights holders to make it available under CC

• Make it policy to open access Green and Gold

Not recommended

Are you required to upload the final accepted version of your article to a repository?

Open access Author survey

march 2013 Taylor &Francis group

Incentives for opening accessrecommended Not recommended

• reclaiming copyright on public domain works

• Misuse of ‘ cultural exception’ to refuse opening up data of cultural institutions

• Claiming digitized content as their own copyright protected work

• Entering into private agreements to digitize content with granting exclusive right clauses for commercializing digital content

• Licenses that only allow cerain re-use.

Left over discussions

• Should official works be exempted from copyright and SGDR protection as such ?

• Means: no licensing issues

• If protected : What licensing framework to use best

• Contractual: clause that grants further re-use by public sector bodies and further re-users

march 2013 Taylor &Francis group

Open access Author survey

Thank you !

• All LAPSI research results available on http://www.lapsi-project.eu

• For more information please visit http://opensciencelink.eu

Contact • Freyja.vandenboom@ law.kuleuven.be