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Towards Open Data Across the Pond

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Open Data Exposed

Part of the book series: Information Technology and Law Series ((ITLS,volume 30))

Abstract

There is a general, international, and multifaceted trend that is shaping the global narrative towards openness as a default setting. The open data movement has been both influencing and influenced by the concepts of Open Government, Open Access, and Open Source; by Freedom of Information laws, and by the regulatory initiatives aiming at fostering the re-use of Public Sector Information. The general aim is promoting information availability, as free of restraints as reasonably possible, to reach a multiplicity of different goals. Transparency, efficiency, accountability, economic growth, and democratic participation are amongst the core values upheld, from an instrumental perspective, by the striving towards openness. This chapter highlights a number of international initiatives that revolve around open data, and that have been instrumental in framing the concept as understood nowadays.

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Notes

  1. 1.

    Gray 2014.

  2. 2.

    The parallelism results clearly from the four fundamental freedoms of free software, as framed by Richard Stallman and the Free Software Foundation: “The freedom to run the program as you wish, for any purpose (freedom 0); The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1); The freedom to redistribute copies so you can help your neighbour (freedom 2); The freedom to distribute copies of your modified versions to others (freedom 3)”—Free Software Foundation n.a.

  3. 3.

    See Open Knowledge International n.a.; see also Pomerantz and Peek 2016.

  4. 4.

    Kitchin 2014, p. 48.

  5. 5.

    See Gray and Darbishire 2011.

  6. 6.

    PSI is logically connected to, and yet distinct from, the notion of open data: see Carrara et al. 2016. The next subsection will elaborate on the similarities and the differences between the two concepts.

  7. 7.

    Malamud 2007.

  8. 8.

    Chignard 2013.

  9. 9.

    Obama 2009.

  10. 10.

    Obama 2009.

  11. 11.

    Data.gov n.a.

  12. 12.

    Orszag 2009.

  13. 13.

    See the following subsection for an overview of the US Open Government Directive.

  14. 14.

    Obama 2011.

  15. 15.

    Obama 2012a.

  16. 16.

    See, however, also Obama 2012b.

  17. 17.

    Obama 2012b.

  18. 18.

    The White House 2012.

  19. 19.

    Obama 2012b.

  20. 20.

    Obama 2012b.

  21. 21.

    Obama 2012b.

  22. 22.

    Obama 2012b.

  23. 23.

    Obama 2013.

  24. 24.

    Burwell et al. 2013.

  25. 25.

    US CIO office n.a.

  26. 26.

    113th Congress, Digital Accountability and Transparency Act of 2014 (DATA Act). 128 STAT. 1146, PUBLIC LAW 113-101. 09.05.2014.

  27. 27.

    Digital Accountability and Transparency Act of 2014, Section 2(2) and (3).

  28. 28.

    European Commission 2011b.

  29. 29.

    Arguably, the development of open data instances and of the open data movement in general within the EU owes as much to national experiences—e.g. the UK’s one—as it does to European-wide initiatives. Even though further comparative research about the evolution of the concept of open data (and of the one of PSI) within individual Member States could be beneficial in developing a historical and genealogical understanding of open data, it would be beyond the scope of this chapter. Therefore, this section is concerned with the EU’s open data policy, and does not consider the contribution that individual Member States had towards the concept and towards the movement.

  30. 30.

    Janssen 2011; Janssen and Dumortier 2003.

  31. 31.

    Janssen and Dumortier 2003.

  32. 32.

    Commission of the European Communities 1989.

  33. 33.

    Raab 2004.

  34. 34.

    Janssen and Dumortier 2003.

  35. 35.

    Commission of the European Communities, ‘PUBLAW 1: General Access to Information Legislation’ (1991); Commission of the European Communities, ‘PUBLAW 2: report on the implementation of the Commission’s Guidelines for improving the synergy between the public and private sectors in the Information Market’ (1993); Commission of the European Communities, ‘PUBLAW 3: Synergy between public and private sectors’ (1995).

  36. 36.

    European Commission 1998.

  37. 37.

    E.g. IP rights, personal data protection, pricing, liability issues, exclusive licensing.

  38. 38.

    European Commission 1998.

  39. 39.

    The Commission’s communication explicitly underlined the failure of the Synergy Guidelines, framing it as deriving from the non-binding nature of the instrument: “the experience with the 1989 Guidelines issued by the Commission services on the exploitation of public sector information suggests that a non-legislative approach in this area will not lead to the necessary results. In practice these guidelines have had little impact”.

  40. 40.

    Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information. OJ L345, 2003-12-31, pp. 90–96. In 2013, the original PSI Directive has been amended by Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information. OJ L175, 2013-06-27, pp. 1–7.

  41. 41.

    Recital 25 identifies as objectives “to facilitate the creation of Community-wide information products and services based on public sector documents, to enhance an effective cross-border use of public sector documents by private companies for added-value information products and services and to limit distortions of competition on the Community market”; see also recitals no. 1, 5, 6, 15, 16.

  42. 42.

    See Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information, Recital 5: “Since the first set of rules on re-use of public sector information was adopted in 2003, the amount of data in the world, including public data, has increased exponentially and new types of data are being generated and collected. In parallel, we are witnessing a continuous evolution in technologies for analysis, exploitation and processing of data. […] The rules adopted in 2003 no longer keep pace with these rapid changes and as a result the economic and social opportunities offered by re-use of public data risk being missed”.

  43. 43.

    Commission of the European Communities 2009.

  44. 44.

    “The Commission shall carry out a review of the application of this Directive before 1 July 2008 and shall communicate the results of this review, together with any proposals for modifications of the Directive, to the European Parliament and the Council”.

  45. 45.

    Commission of the European Communities 2009.

  46. 46.

    European Commission 2011a.

  47. 47.

    European Commission, Proposal for a Directive of the European Parliament and of the Council Amending Directive 2003/98/EC on re-use of public sector information. Brussels, 12.12.2011 COM(2011) 877 final 2011/0430 (COD).

  48. 48.

    Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information. OJ L175, 2013-06-27, pp. 1–7.

  49. 49.

    European Commission. Proposal For A Directive Of The European Parliament and of the Council on the Re-Use Of Public Sector Information (Recast) Brussels, 25.4.2018 COM(2018) 234 Final 2018/0111 (COD).

  50. 50.

    European Commission 2018b.

  51. 51.

    Barbero and others 2017.

  52. 52.

    Carrara and others 2017.

  53. 53.

    European Commission 2018d.

  54. 54.

    I.e. maintaining the current baseline, repealing the PSI Directive tout court, using only soft law measures, and a mix of regulatory intervention and soft law.

  55. 55.

    European Commission 2018d.

  56. 56.

    Documents produced during the performance of scientific research, resulting from qualitative or quantitative scientific inquiry. Publications in scientific journals would continue to be excluded from the scope of the PSI Directive. The amendment would considerably narrow the current exemption applicable to documents held by educational and research establishments.

  57. 57.

    As it currently is for documents in which libraries, including university libraries, museums and archives hold intellectual property rights: see Article 3.2 of the PSI Directive as amended in 2013.

  58. 58.

    The Commission’s proposal for a recast of the PSI Directive contains several other novel provisions fostering the development of open data in the EU. It also clarifies, for instance, that the sui generis database right ex Directive 96/9/EC cannot be invoked by a public-sector body as a ground to deny re-use of the database’s contents, and that the costs for anonymising documents containing personal data (and that thus cannot be released as PSI as such due to data protection law) can be considered when calculating a dataset’s costs.

  59. 59.

    European Commission 2011b.

  60. 60.

    Commission Decision of 12 December 2011 on the reuse of Commission documents, OJ L 330/39, 14-12-2011.

  61. 61.

    E.g. language barriers and interoperability.

  62. 62.

    European Commission 2017b.

  63. 63.

    European Commission 2017a.

  64. 64.

    European Commission 2017b, p. 5; p. 18.

  65. 65.

    European Commission 2015.

  66. 66.

    European Commission 2017b, p. 18.

  67. 67.

    See Kitchin and Dodge 2011; Bratton 2016.

  68. 68.

    As opposed to the US, where the OGD (Open Government Data) movement rather campaigned on transparency, accountability, democratic participation, and administrative efficiency.

  69. 69.

    European Commission 2012a.

  70. 70.

    The data bound by location requirements is generally somehow sensitive and covered by specific regulatory frameworks; what is shared as open data, on the contrary, is information that is not restricted by legal barriers such as e.g. privacy and data protection, national security, specific liability provisions, or the protection of intellectual property rights.

  71. 71.

    E.g. the PSI Directive, the INSPIRE Directive, the COPERNICUS programme’s legal milieu; also, the Freedom of Information and the Access to Documents national legislations.

  72. 72.

    The IoT brings along the possibility to gather information from a broad range of devices that were not networked until very recently—information often locked in proprietary ecosystems.

  73. 73.

    There are, however, sector-specific instruments that mandate data sharing e.g. in the automotive sector for maintenance and repairing purposes, or in the Intelligent Transport Systems (ITS) sector: see European Commission 2017a, p. 21.

  74. 74.

    See Janssen and Dumortier 2003; Janssen 2011.

  75. 75.

    Loi n° 2016-1321 du 7 octobre 2016 pour une République numérique (1) NOR: ECFI1524250L, JORF n° 0235 du 8 octobre 2016 texte n° 1.

  76. 76.

    E.g. the data gathered by concessionaries of a public service (Loi n° 2016-1321, Article 17), or from the operators of electricity or natural gas distribution networks (Article 23), or from the tax administration (Artilce 24) or even any other private legal person (Article 19), if so decided by the Minister of Economy in consultation with the National Council for Statistical information, only for statistical purposes, and when appropriate safeguards are adopted.

  77. 77.

    Which is different from sanctioning default contractual rules, single model contractual clauses are not a legislative solution.

  78. 78.

    European Commission 2017, p. 30.

  79. 79.

    Personal data portability, on the contrary, is one of the new data subjects’ rights introduced by the General Data Protection Regulation.

  80. 80.

    See Van Loenen and Grothe 2014.

  81. 81.

    See Lessig 1999, 2006. Lessig, whose framework we adopt, distinguishes between the following regulatory forces: the law, the market, social norms, and architecture or code (regulation trough technology, in a nutshell).

  82. 82.

    European Commission 2018e.

  83. 83.

    European Commission 2018e, p. 1.

  84. 84.

    See Sect. 2.4 above.

  85. 85.

    European Commission 2012b.

  86. 86.

    European Commission 2018a.

  87. 87.

    European Commission 2018c.

  88. 88.

    European Commission 2018e, pp. 8 ss; European Commission 2018c, p. 2.

  89. 89.

    European Commission 2018c.

  90. 90.

    The relevant contractual agreements should identify in a transparent and understandable manner who will have access to the data, which type of data will be provided, and at which level of detail, and the purposes for using such data.

  91. 91.

    Several parties contribute to generating the data, and the value it creates should be shared accordingly.

  92. 92.

    Data portability should be allowed and enabled.

  93. 93.

    Public-sector requests for private sector data under preferential conditions should be justified by clear and demonstrable public interest, adequate and relevant to the purpose, and proportionate to the cost and effort required as compared to the expected public benefits.

  94. 94.

    The use of private-sector data by the public sector should be clearly limited by the purposes specified in the contractual provisions that establish the data sharing collaboration.

  95. 95.

    I.e. the “do no harm” principle.

  96. 96.

    B2G data sharing agreements should be mutually beneficial within the limits of the public interest pursued.

  97. 97.

    Data releasers should offer reasonable and proportionate support, but not be required to improve the quality of the data in question. Public bodies, on the other hand, should ensure that such information is processed to avoid possible selection biases influencing the outcome of the processing.

  98. 98.

    Sharing the information as open data, monetising it on a data marketplace, or exchanging it within a closed platform.

  99. 99.

    Data donorship, granting prizes for solving particular public interest challenges through data analytics, B2G partnerships, or the recourse to intermediaries.

  100. 100.

    The Guidance contains a number of considerations that aim at assisting in the drafting of B2B and B2G data sharing contracts or licensing agreements.

  101. 101.

    The Guidance typifies a number of technical mechanisms for data sharing in both B2B (e.g. one-to-many data sharing through APIs or Industrial Data Platforms) and B2G (e.g. data platform solutions) arrangements.

  102. 102.

    OECD 2008.

  103. 103.

    Which substantiates in maximising the availability of PSI by adopting openness as the default setting for government data releases, wherever possible and no matter what the model of funding is, to boost access and re-use.

  104. 104.

    Meant to foster broad, non-discriminatory, and competitive access to PSI, eliminating exclusive arrangements and unnecessary restrictions on access and reuse, “so that in principle all accessible information would be open to reuse by all”, preferably over the Internet and in electronic form.

  105. 105.

    To generate awareness, both of what public sector information is available e.g. through online lists and inventories, and of the conditions to access and re-use the available PSI.

  106. 106.

    To improve interoperable archiving, search and retrieval technologies and related research, addressing technological obsolescence and finding new ways for PSI digitisation.

  107. 107.

    In case PSI is not provided free of charge, possibly not exceeding the marginal costs of maintenance and distribution.

  108. 108.

    “The Socioeconomic Effects of Public Sector Information on Digital Networks: Toward a Better Understanding of Different Access and Reuse Policies”, workshop organised by the U.S National Committee for CODATA; Board on International Scientific Organizations, U.S. National Academy of Sciences; Organisation for Economic Co-operation and Development, https://www.oecd.org/sti/ieconomy/wpieworkshoponpublicsectorinformation.htm, 2008.

  109. 109.

    OECD 2006.

  110. 110.

    “Workshop on Access to Public Sector Information and Content”, workshop organized by the OECD, https://www.oecd.org/sti/ieconomy/workshoponaccesstopublicsectorinformationandcontent.htm, 2006.

  111. 111.

    OECD 2006.

  112. 112.

    https://www.opengovpartnership.org; see also Chap. 5 of this Volume

  113. 113.

    Group of 8 2013.

  114. 114.

    Group of 8 2013.

  115. 115.

    Meaning that, in a nutshell, it is imperative to aim at releasing as much information as possible, and of the best quality, timeliness, and documentation achievable.

  116. 116.

    Without discriminating neither the possible users of the information released nor the means through which those users could access and process that information.

  117. 117.

    Fostering both transparency and efficiency within the public sector.

  118. 118.

    Fostering economic growth and scientific progress.

  119. 119.

    Implementing the charter in a national action plan, releasing as many high-value datasets as possible, and contributing to both the metadata mapping index across the G8 member states’ metadata and to the detailed page on each state’s use of metadata.

  120. 120.

    IODC 2015b.

  121. 121.

    IODC 2015b.

  122. 122.

    IODC 2015a.

  123. 123.

    E.g. the OGP Summit in Mexico City (October 27–29, 2015), the G20 Leaders’ Summit in Turkey (November 15–16, 2015), and the COP21 in France (December 7–8, 2015).

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Acknowledgements

This research was supported by the Maps4Society program of the Netherlands Organisation for Scientific Research (NWO) (grant 13718).

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  1. Faculty of Architecture and the Built Environment, Knowledge Center Open Data, Delft University of Technology, Delft, The Netherlands

    Lorenzo Dalla Corte

  2. Tilburg University (TILT), Tilburg, The Netherlands

    Lorenzo Dalla Corte

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  1. Faculty of Architecture and the Built Environment, Delft University of Technology, Delft, The Netherlands

    Bastiaan van Loenen

  2. Faculty of Architecture and the Built Environment, Delft University of Technology, Delft, The Netherlands

    Glenn Vancauwenberghe

  3. Public Governance Institute, KU Leuven, Leuven, Belgium

    Joep Crompvoets

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Dalla Corte, L. (2018). Towards Open Data Across the Pond. In: van Loenen, B., Vancauwenberghe, G., Crompvoets, J. (eds) Open Data Exposed. Information Technology and Law Series, vol 30. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-261-3_2

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