The paradoxes of open data and how to get rid of it? Analysing the interplay between open data and sui-generis rights on databases

Abstract

Open Data is an important public policy that contributes to achieving greater transparency and broader access to information, more citizen participation and engagement, while also supporting innovation and economic growth. The pace at which the Open Data movement is spreading in different fields of endeavour can be taken as an illustration that society is evolving towards greater openness, transparency and accountability. Yet, several constraints and legal uncertainties subsist beyond the façade of Open Data. This article investigates different layers of rights that regulate the use and re-use of data: from the copyright vesting in the content and/or structure of a particular dataset, to the sui-generis right protecting against the substantial reproduction and/or extraction of the content of a database. The objective is, ultimately, to illustrate the conflictual relationship that subsists between the underlying principles of Open Data, which purports to promote the free use and re-use of information, and the underlying legal system, whose provisions are increasingly relied upon to establish an exclusive right on public sector information.

Where is open data in the Open Data Directive?

“…The push for open data was not especially legalistic or envisaged an explicit or specific legal framework. In fact, there is no legal definition of open data in statutes or case law (De Filippi & Maurel, 2015). However, the concept builds upon the origins of FOI for transparency and accountability for public trust (Janssen, 2011b), which has legal dimensions.…”

“…The G8 launched an open data charter (G8, 2013), which subsequently became the International Open Data Charter and was adopted by over 100 governments and organisations. Although they have a direct normative effect (De Filippi & Maurel, 2015), these charters, recommendations, and guidelines emerging on the international stage were non-binding, meaning that the ODD is of particular importance. The EU has been the first transnational body to enshrine, at least in name, open data into hard law.…”

“…Under the previous directive, the implementation of the main general principle of the right to re-use had been left to the discretion of the member states (van Eechoud & Janssen, 2012). However, in 2013, the right to re-use was codified, making all documents reusable unless access was restricted or excluded under national rules on access to documents (De Filippi & Maurel, 2015). Open data was also introduced as a concept in the preamble to the PSI Directive of 2013 in the form of acknowledging and encouraging open data policies (Recitals 3 and 6), open licencing (Recital 26) and open data formats (Recital 26).…”

“…This echoes and aligns with the Open Knowledge Foundations (OKFN) definition as 'data that can be freely used, shared and built-on by anyone, anywhere, for any purpose' (James, 2013). Hence, there is still no legal definition of open data either in statutes or case law, as was identified almost a decade ago by De Filippi and Maurel (2015). If we turn to the type of data that the ODD regulates; it classifies documents that contain personal data, third-party intellectual property and sensitive data that are excluded from national access regimes as being outside of the scope (Article 1(2)).…”

Sob a lente da Ciência Aberta: Olhares de Portugal, Espanha e Brasil

“…En efecto, si la base de datos alcanza un cierto nivel de originalidad en su estructura o en la selección de su contenido estará protegida por la legislación de derechos de autor. Pero, además, en los países de la Unión Europea hay una protección adicional para los simples datos, incluso en el caso de que estén incluidos en bases de datos no originales: el derecho 'sui generis' de las bases de datos (Unión Europea, 1996), cuyo contenido y características son todavía más difíciles de entender que los derechos de autor (De Filippi & Maurel, 2015).…”