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Inspire: information policy issues of the European spatial data infrastructure.

Abstract: In the European Union, regional and local government agencies struggle with the same issues in the use and sharing of spatial data as their U.S. counterparts. Currently, the European institutions and Member States are discussing the implementation of the INSPIRE initiative for a European Spatial Data Infrastructure. The goal of INSPIRE is to create an infrastructure that allows public sector users at the European, national, regional and local level, and the citizens to discover, access and acquire spatial data from a wide range of sources in an interoperable way for a variety of uses at conditions which do not restrain its use. On a policy level, INSPIRE deals with issues such as public access, the sharing of data between government agencies, intellectual property, and commercialization of spatial information.

INTRODUCTION

In 2006, the European Union counts 25 countries and it is still extending. Its latest expansion has been its biggest: in 2004, 10 new Member States officially joined the EU. In these Member States, 20 official languages are spoken, while many regional languages remain unrecognized. The total population amounts to over 460 million (Eurostat 2005) and its total GDP approaches 13 trillion dollars.

The level of development of national and regional SDIs differs greatly between the European Member States. While most countries do not have an integrated approach for building and maintaining the national SDI (K.U.Leuven SADL 2005), spatial data and their importance for policy preparation and implementation have been on the agenda in some shape or form in all of the Member States. In addition, there is also a rising awareness that, in order to determine the full impact of any policy decision, national or regional spatial data often will not suffice, but information on the surrounding Member States will also be necessary for issues such as transport and security, river flooding, avian influenza, forest fires, etc.

THE INSPIRE INITIATIVE

General principles

The European Commission decided in 2001 to set up a European infrastructure in order to enable public authorities within and between Member States to exchange spatial data for the performance of their public tasks. In addition, such an infrastructure would also enable the European institutions to obtain the data they need from the Member States to establish the common European policies. The European Commission had tried once before in the 90s to set up a program for spatial data with the GI2000 Communication (European Commission 1998), but due to the resignation of the Commission the communication disappeared off the agenda, and the issue resurfaced as INSPIRE.

In a first phase, this INSPIRE initiative only addresses environmental purposes, and the spatial data that are needed for them, but the policy could always be expanded to other sectors, such as agriculture, transport and energy (European Commission 2004). The objective of INSPIRE is to create a framework for the establishment and operation of an SDI in Europe, for the purpose of formulating, implementing, monitoring and evaluating Community policies at all levels and providing public information. The initiative is based on a number of basic principles (INSPIRE DPLI Working Group 2002):

* Data should be collected once and maintained at the level where this can be done most effectively.

* It must be possible to combine seamlessly spatial information from different sources across Europe and share it between many users and applications.

* It must be possible for information collected at one level to be shared between all the different levels, e.g. detailed for detailed investigations, general for strategic purposes.

* Geographic information needed for good governance at all levels should be abundant and widely available under conditions that do not restrain its extensive use.

* It must be easy to discover which geographic information is available, fits the needs for a particular use and under what conditions it can be acquired and used.

* Geographic data must become easy to understand and interpret because it can be visualized within the appropriate context and selected in a user-friendly way.

The European Commission involved stakeholders from the public and private sector, and academics in the process of developing its policy. Consultation processes among the Member States, the stakeholders and the experts led to the adoption of a proposal for a Directive establishing an infrastructure for spatial information in the Community in 2004 (European Commission, 2004). When adopted in its final version, this directive will provide a legal backbone to the development of the European SDI.

The procedure of the directive

The directive is subject to a co-decision procedure, entailing that the European Parliament and the Council of the European Union have to agree on the final outcome of the directive. In this process, the Council and the European Parliament exchange views in two stages--two "readings"--starting from a proposal from the Commission. If after these two readings no agreement on the amendments is found between the institutions, a "conciliation" procedure has to be started. If this procedure does not lead to an agreement, the directive is finally rejected. If an agreement is found, the directive can become definitive. This process takes on average 20 months (Devuyst 2004). After the directive has entered into force, the Member States have a time limit--usually 18 months to two years--to transpose it into national law. They can choose the manner in which they want to do this, e.g. laws or royal decrees or cooperation agreements, as long as they reach the end results the directive is prescribing.

Currently, the INSPIRE draft directive has reached the conciliation stage. Its final text is expected by the end of 2006. It covers aspects such as metadata, data sharing, public access and interoperability. The draft directive has been the subject of heated discussions, most of which address the legal or organizational aspects rather than the technical topics. Central elements are intellectual property issues, and the possibility of charging for access of the citizen and data sharing between public authorities. These are the issues that keep returning in any discussion on the availability of spatial data created or held by the public sector. Before we take a look at the specific issues of the INSPIRE draft directive, we will chalk out the questions that are involved and the already existing European legislation that has an impact on the subject.

ACCESS TO GOVERNMENT INFORMATION

Most, but not all of the Member States of the European Union have a fully functioning freedom of information law in place, and for the countries that do have a FOI law, there are also considerable differences in the traditions and experiences, in the field of application, exceptions, etc. For instance, in the summer of 2006, Malta and Luxembourg do not have a Freedom of Information law, while the German federal law has been in force since January 2006, and the United Kingdom Freedom of Information Act dates from 2000, but has only been completely in force since 2005. On the other hand, the oldest access legislation can also be found in the European Union: the Swedish law dates from 1776 (Banisar 2006).

Even though the national legislations and practices on access to information differ, the European Commission has made it clear that it does not intend to take any initiatives in this field, because it is a matter of the Member States that should not be harmonized on a European level, but should remain first and foremost a national, regional and local responsibility (European Commission 2001). The only exception to this concerns environmental information. A first directive was voted in 1990, and replaced by Directive 2003/4 on public access to environmental information. Because of these regulations, access to environmental information has been established under harmonized conditions for all the Member States of the European Union. As the majority of environmental data will also have a spatial dimension, this legislation is also important for the development of a spatial data infrastructure. It implements the Aarhus Convention on Access to information, public participation in decision-making and access to justice in environmental matters (UNECE 1998).

One of the main points of discussion in the Treaty and in the Directive was the possibility for the government agencies to charge the citizens for access to environmental information. In the end, a compromise was reached: access to environmental information by means of on site examination is free of charge, while the public agencies may charge for supplying the information, as long as the charges do not exceed a reasonable amount. Generally, the charges should not exceed actual costs of production, but in the case where the public body makes its environmental data available on a commercial basis, and this is necessary in order to guarantee the continuation of collecting and publishing such information, market-based charges would be possible.

The debate on charging has been held many times before, and has often been based more on ideology than on empirical evidence (Longhorn and Blakemore 2004). The discussion is fueled by the increasing demand on European public agencies to provide their own funding. They argue that providing free access to their spatial data would leave them without resources to create and update data with the level of quality they are used to delivering. On the other hand, proponents of free availability of government information claim that information that is already paid for by the taxpayer when it was collected for the public agencies' own purposes, should not be paid for again by those who wish to obtain access to it (Rybaczuk and Blakemore 1994). In answer to this argument, one could ask why all taxpayers would have to finance the creation of the information, while only a small percentage of private citizens and businesses are interested in obtaining the information (Onsrud 1992a, Van Loenen 2006). Then again, free availability might actually benefit the taxpayer in the end, as it could stimulate the use of the information and be beneficial for the economy in general, employment opportunities, and the subsequent tax income (Rhind 1992, Onsrud 1992b, Van Loenen 2000).

In the European Union, there are a fair number of government agencies that aim to recover all the costs of producing their spatial data, because they see this as the only way of guaranteeing sufficient resources to ensure their viability. The English Ordnance Survey is a prime example of this. As a Trading Fund it is required to gain its income from payments made by customers and by other exploitation of its assets, databases and intellectual property. One of its tasks is to generate profitable revenue that will fund continuous improvement of their data (Ordnance Survey 2004). The OS is not the only spatial data producer that has to rely on its "sales" to customers to ensure its continued existence Many government agencies have resorted to charging for their data for this reason, and they often call on their intellectual property rights to do so. However, the extent to which such intellectual property rights on public sector spatial data can be invoked, is also anything but clear.

INTELLECTUAL PROPERTY RIGHTS ON SPATIAL DATA CREATED BY THE PUBLIC SECTOR

Introduction

The use of intellectual property rights by public sector agencies as an argument to charge the citizens for access can give light to a discussion on two levels. On the one hand, one can wonder whether public sector agencies should even be able to claim copyright on works they created with the taxpayers' money and in order to fulfill their public tasks towards the citizens. Under current copyright legislation, this is not possible in all countries. The United States federal level is of course the prime example, but Austria and Germany also choose to not claim copyright on works created by the government. However, there are many European countries that to a greater or lesser extent allow government agencies to assert copyright. For instance, in France, Belgium and in the Netherlands, copyright cannot be asserted on "official documents", such as legislation, jurisprudence, parliamentary proceedings, etc, while other documents can be protected by copyright if they fulfill the conditions, and in the Dutch case, if the government agency reserves its rights. The United Kingdom copyright legislation, however, ensures that all works that are created by "Her Majesty or by an officer or servant of the Crown in the course of his duties" (Copyright Act 1968). According to some scholars, using copyright to deny access to government information under the form of providing a copy of the document would undermine any right to information of the citizen, while others see it as necessary for the public agency to remain in control of its information (Schram 2002, Saxby 2005)

Protection by copyright

In the case where a government agency has the possibility to invoke copyright protection of its works, the question yet remains whether there even are any intellectual property rights to be claimed on spatial data. To be eligible for copyright protection, a work has to be original and expressed in a certain form. In the civil law systems of the European continent, originality requires the work to be the author's own intellectual creation and to express the author's personality. This expression of the author's personality would appear in the choices the author can make when creating his work, i.e. if he chooses a certain way in which to express himself, while other options are available. If there are no choices and there is only one manner in which to express a certain thought, there is no personal touch and hence no originality.

In the United Kingdom and Ireland, a work has to be fixed in a tangible form and be original to be protected by copyright. To be original, a work has to be the result of the investment of sufficient skill, judgment or labor (Sterling 2003). This originality test is lower than the "intellectual creation" that is required in the rest of the European Union, even though due to the harmonization efforts of the European Union institutions, the interpretations of originality have been slowly moving towards each other. The United States 1976 Copyright Act requires fixation and originality for copyright protection. An original work is an independent creation by the author, and shows a modest quantum of creativity (Joyce et al 2000). According to the Supreme Court in Feist, the requisite level of creativity is extremely low, and even a slight amount will suffice (Feist 1991).

The challenge for determining the possible protection of spatial data lies in the definition of originality, as spatial data are largely factual and facts are not subject to copyright under the Berne Convention (Onsrud and Lopez 1998). They are meant to be a rendition of reality and leave very little room for "originality". Their main value lies in their accuracy and their compliance with standards, ensuring easy access and interoperability. While increasing their value, these elements make the spatial data less eligible for copyright protection.

Protection by the database right

A second level of protection of intellectual property lies in the so-called sui generis database right. This protection has until now never been introduced in the United States, despite several attempts to enact legislation in this sense (Trosow 2005). The database right does not protect originality, but investment, in order to protect databases that have taken a lot of effort and financial resources to create, but that don't show any creativity from being easy victims of unauthorized copying. A database is protected if there is a substantial investment in the obtaining, verification or presentation of its contents. This investment can be financial, material or human, but it has to be made with view to the development of the database itself (i.e. not in the creation of data which are in a second phase inserted in a database). If such a substantial investment has been made, the sui generis database right gives the maker of the database the right to prevent any unauthorized extraction or re-utilization of its database or of substantial parts thereof.

In most--if not all--Member States of the European Union, there is no exception to the sui generis right for databases created by government agencies. This entails that the agencies could invoke their sui generis right in order to require remuneration for giving access to their spatial databases. However, the database right only applies if at least a substantial part of the database is retrieved. In the case of a citizen requesting access to spatial data, this will hardly ever be the case. A citizen will be interested in obtaining information on his own land, taxes, building permits, etc. He only wants to obtain a report on the soil pollution of his own property, and not of all the land in his county or state. If a request for such information--constituting in all likelihood a substantial part of a database--would be made, we can assume that it stems from a commercial company intending to use the information for an information product or service, combining the obtained information with data from other sources. In the context of the European legal framework, we are then no longer talking about access of the citizen, but about re-use of public sector information by the information sector.

If spatial data held by the public sector are being re-used by the private sector to obtain commercial gains, the issue of charging and pricing can be seen in a different light. Re-use is not a matter of the citizen intending to exercise his democratic right to check up on the government's activities, but mostly of the information industry creating added-value services and products based on public sector data.

RE-USE OF PUBLIC SECTOR INFORMATION

Background

Spatial data held by public sector agencies is not only important for the citizen to make full use of his rights and obligations and to check up on the government he chose through the means of elections, but it also has a considerable economic value. It is an excellent resource for the private information industry to use as raw material for the products and services they offer on the market. Such purposes move beyond access of the citizen into the more economic field of commercial exploitation of public sector information. This also has an influence on issues such as the pricing and charging for the dissemination of data.

In the European Union, separate legislation was adopted to deal with the economic potential of public sector information. The European Commission felt that the European information industry was lagging behind its American counterparts because of the "considerable differences in the rules and practices in the Member States relating to the exploitation of public sector information resources, which constitute barriers to bringing out the full economic potential of this key document resource" (European Parliament and Council 2003). Harmonization was needed in order to stimulate the development of the information industry. In its arguments for such a harmonization, the European Commission referred to the U.S. federal level, where all information created by the government was available free of charge.

The directive on the re-use of public sector information was promulgated on November 17th, 2003 and had to be transposed into national legislation by the Member States of the European Union by July 1st, 2005. Until now, 17 of the 25 countries have implemented regulations on re-use. This may be quite problematic, considering the fact that the first evaluation of the impact of the directive should be done in the summer of 2008.

General principles of the directive

The directive deals with both commercial and non-commercial re-use (e.g. by non-profit organizations), but its main target group was the information industry. Re-use is defined as any use that is made of documents held by the public sector, for commercial or non-commercial purposes, other than the original purpose within the public task for which they were produced. Exchange of documents between public sector bodies for the purpose of performing their public tasks is not considered re-use. We assume that this also implies that the use of a document by the public sector body that produced it for a different purpose within the public task, also does not constitute re-use, even though the directive does not mention it.

A number of categories of documents and public sector bodies are excluded from the field of application of the directive. The directive does not apply to documents held by cultural establishments, educational and research establishments, and by public broadcasters. These government agencies felt that their financial viability would be endangered by the directive, as most of them are required to provide for at least a part of their own funding by selling their information (e.g. museums and archives selling books, posters, etc.). Also excluded are documents the supply of which is an activity falling outside the scope of the public task, i.e. commercial services that are offered on the market in competition with the private sector, and documents to which third parties hold the intellectual property rights. Note that the directive does not exclude documents that are subject to the intellectual property rights of the public sector bodies themselves. It even states in its recitals that the public sector bodies should exercise their rights in a way that facilitates re-use. A next set of documents that is excluded, are the documents that are not accessible under national freedom of information or access legislation. This is only logical: if a document isn't available to the citizen for access, of course it cannot be available for re-use.

The directive on re-use does not contain any obligation for the Member States or the public sector bodies to make their documents available for re-use. It merely states that if they do decide to allow re-use, they have to do so according to the conditions imposed in the directive. However, the public sector body cannot allow re-use for one purpose, and refuse it for another. It is for instance not possible to allow re-use by non-profit organizations, while refusing to make the documents available to companies with commercial plans. This also entails that if a public sector uses its documents for any other purpose than its public task purposes, it has to make those documents available to any other party requesting them. For instance, if a local authority uses its geographic data to create cycling or walking routes and sell them to tourists, it will also have to make the underlying data available to any commercial company asking for it--at least if we consider such an activity to be outside of the public task. So, even if the directive does not contain an actual obligation for the Member States, its impact may be bigger than one would assume at first sight.

The directive includes a number of conditions that the public sector bodies have to comply with when making their information available for re-use. It concerns time limits, communication of the grounds of refusal of a request, references to means of redress, transparency, etc.

The section of the directive that is the most interesting in the context of this paper, deals with charging and pricing. The directive leaves a wide margin to the member states as to the remuneration they can require for making their documents available for re-use. According to article 6 of the directive "Where charges are made, the total income from supplying and allowing re-use of documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. Charges should be cost-oriented over the appropriate accounting period and calculated in line with the accounting principles applicable to the public sector bodies involved". This section was one of the main breaking points of the directive, as many public sector bodies worried about their financial viability if they would have to offer their documents at marginal cost. The European Parliament tried to introduce the free of charge availability of some documents--so-called information of the democratic constitutional states, which included at least texts of legislation and regulations, judicial decisions and the information of representative bodies (e.g. parliamentary information)--but this was not accepted by the European Commission and the Council of Ministers, as the issue here was access of the citizens to these documents rather than re-use. However, the directive states explicitly that free of charge availability of public sector documents is always as possibility, and it encourages dissemination at marginal cost: "The public sector bodies should have the possibility of applying lower charges or of not charging at all, and Member States should encourage public sector bodies to make documents available at charges that do not exceed the marginal costs for reproducing and disseminating the documents".

With such a broad statement on the charges for re-use of public sector information, the directive may not reach its goal of harmonization. However, its great merit is that it requires the Member States and the public sector bodies to be transparent about their conditions for re-use, as often the complaints of the private sector appeared to be not so much directed towards the price of the data they wanted to obtain as to the lack of clarity of the conditions for re-use in general.

INSPIRE: DATA SHARING BETWEEN PUBLIC AUTHORITIES

The directive on re-use of public sector information has not even been fully transposed in all of the Member States, and yet the next regulations on public sector data exchange are already on their way. As was mentioned before, the two sections that are the subject of most of the debates are the access of the citizen to network services offered by the public authorities, and the data sharing for public task purposes between the public authorities within a Member State and between Member States.

The INSPIRE draft directive is only directed at a limited number of categories of information. The list includes coordinate reference systems, administrative units, transport networks, hydrography, elevation, cadastral parcels, statistical units, geology, land use, meteorological geographical features, etc., ...(European Commission 2004). The purpose of the directive is twofold: on the one hand, it intends to ensure access of the citizen to the INSPIRE data, and on the other hand, it addresses the sharing of data between public authorities for performing their public tasks (Janssen 2005).

In principle, the INSPIRE directive should be without prejudice to the directive on access to environmental information and to the PSI directive. After all, they were supposed to deal with three different issues: the directive on environmental information dealt with access of the citizen, the PSI directive with re-use of the information for other purposes than the public task, and INSPIRE with data sharing for the performance of public tasks. However, since the INSPIRE directive also addresses access of the citizens to network services offered by the public authorities, the discussion on intellectual property rights and the possibility of imposing charges for the access of the citizens has reared its head again.

Under INSPIRE, public authorities would have to offer several types of network services to the citizens, such as discovery services, view services, download services and transformation services. Access to these services could be limited for a number of reasons, such as public security, the confidentiality of personal data or the course of justice. Should intellectual property also be included as a possible reason to limit public access to spatial data? According to the Council of Ministers this should be the case, while the European Commission and the European Parliament believe otherwise. The most important reasons for the concerns of the Council of Ministers--or rather of the government agencies that are advising their national representatives in the Council--are the lack of control they have over what happens with the data once they are made available to the citizens, and the necessity for some of the agencies to obtain revenues from selling their data and services. In our opinion, these reasons are not enough to limit or even deny the citizens access to documents that are of interest to them in order to fully benefit from their democratic rights. There are other, less intrusive manners to protect the interests of the public agencies, such as the use of digital rights management (DRM). DRM cannot only be used to restrict the availability of information, but also for managing and marketing digital content (INDICARE 2004). The use of DRM would make it possible to enforce certain conditions on the subsequent use of the spatial data, while still enabling the citizen to gain knowledge.

However, this still leaves the question whether access to spatial data can be charged for, other than the cost of the supply of a copy of the requested document. According to the Council of Ministers, not only downloading spatial data should be charged for, but also examining the data through a view service (Council of Ministers 2006). In our opinion, it seems too far-reaching to charge the citizen for only taking a look at data without getting his own copy of the data. This might even be counterproductive for the goal of the government agencies to guarantee their funding. If the citizen cannot even access a service without paying for it, he will be less inclined to use it, while on the other hand, if he finds data that is interesting to him through the view services, he might be more inclined to pay for obtaining his own copy through a download service.

A similar debate has been held on the charges for sharing spatial data between public authorities for the purpose of performing their public tasks with an impact on the environment. The Council of Ministers wants the public authorities to be able to license and require payment for sharing data with other public bodies, without mentioning any price limits. This would create a strange situation where public authorities would be able to charge whatever they pleased for sharing their data with other public authorities, but would be restricted to a reasonable return on investment for delivering the data to the private sector. Of course this does not necessarily mean that data sharing will cost more than re-use, but legally it would be possible.

CONCLUSION

This paper only provides a short introduction to some of the issues that are troubling the European policy makers developing a European spatial data infrastructure. In essence, the issues can be reduced to one: how do we reconcile the availability of spatial data for public authorities, industry and the citizens with the financial viability of the public spatial data producers? One of the biggest complaints about INSPIRE in this respect addresses the lack of knowledge on the costs and benefits of a European SDI, and whether or not the SDI might be sustainable under the models that the European Union authorities are proposing (Longhorn and Blakemore 2004).

Before introducing the INSPIRE draft directive, the European Commission made an extended impact assessment in order to estimate the effect of the proposal in its economic, social and environmental dimensions (European Commission 2003). The impact assessment showed that there was a lack of research and hence knowledge on the costs and benefits of SDI (Craglia and Johnston 2004). A significant increase in research on the impact of a European SDI is needed, and this research should be used as input for the development of an appropriate legal framework that can be based on more than guesses whether or not and in how far the availability--free of charge or not--will benefit the economy and society in general.

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Katleen Janssen

Interdisciplinary Centre for Law and ICT (ICRI)

K.U.Leuven

Leuven, Belgium

+ 32 16 325263

Katleen.janssen@law.kuleuven.be
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Title Annotation:Papers and Presentation Materials
Author:Jannsen, Katleen
Publication:Urban and Regional Information Systems Association Annual Conference Proceedings
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Date:Jan 1, 2006
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