Lower fees for re-use of public sector information – the PSI Directive and cases from the Swedish Competition Authority
Background – the PSI Directive regulates how public sector bodies shall provide information
In an attempt to establish and facilitate the expansion of information-based markets the Directive 2003/98/EC on the re-use of public sector information (the “PSI Directive”) was adopted in 2003. The aim is that the information collected by the public sector bodies as part of their public task shall be made available for re-use, to enable combination with other PSI-information and for the information to be presented in new products and services. The information is called PSI-information or open data. If PSI-information can effectively be re-used to the extension the Union has set as a goal the market size within the EU is estimated to 140 billion euro and 30 billion SEK in Sweden. At the moment only 20 % of the potential market is being exploited. Some examples of new Swedish services implementing PSI-information are “Tågtavlan” and “Sök operatör” (both are smartphone applications).
The PSI Directive is a so called minimum directive which introduces a common set of basic obligations that each Member State has to implement. The directive does not contain an obligation to allow re-use of public sector information but regulates the conditions for such information that have been made accessible for re-use. The PSI Directive does not therefore affect the principles of public access to official records. The directive regulates that those public documents that have been made public shall be made accessible for re-use by private persons and undertakings and prohibits any exclusive agreements. Unfortunately, these rules have not been in focus in Sweden for as long as they have been in other Member States since the directive was implemented approximately five years too late, through the PSI Act (2010:566), however, the rules have been applicable in Sweden since 2005 when the implementation period for the directive ended. Further, it has been questioned whether the PSI Act is a correct implementation of the provisions in the PSI Directive.
A central provision in the PSI Directive concerns the upper limit for the fees charged for re-use. When fees are charged they shall not exceed the cost of ‘collection, production, reproduction and dissemination, together with a reasonable return on investment’ (Article 6 of the PSI Directive). However, the goal of the PSI Directive is that the pricing shall be set to the marginal cost, i.e. the cost of providing the information. At present there is no supervisory authority nor a redress mechanism in case an undertaking or private person wants to question whether a public sector body is acting in accordance with the PSI Directive. However, in 2012 the Swedish Competition Authority has in two separate cases investigated whether the charges for PSI-information have been unlawful according to the Swedish Competition Act (2008:579) (the “SCA”). In both cases the public sector bodies have decided by their own initiative to substantially decrease their charges.
The Competition Authority initiated an investigation to clarify whether SMHI’s action infringed any of the provisions of the Competition Act.
During the investigation the PRO decided to reduce the fee from 100 000 SEK per annum (as well as a starting fee of 75 000 SEK) per user to 40 000 SEK divided between all users. Due to this decision the Competition Authority decided to write off the investigation without making any formal decision in the matter.
The Competition Authority also investigates a matter, after a complaint, against the Cadastral Authority
The NCA initiated an investigation to clarify whether SMHI’s action infringed any of the provisions of the Competition Act.
During the investigation SMHI decided to substantially lower the fees to a level that was equal to the marginal cost. The NCA wrote off the matter on 2 July 2012. SMHI have later in media statements stated that a lot of information will be made available for free; however interested parties may have to wait until 2014 before such access is developed.
The Competition Authority is also investigating the pricing by the Cadastral Authority
The Administrative Court of Appeal has examined pricing issues regarding telecom sector regulation
A new and revised PSI Directive
Another important proposal is that authorities only should be able to charge the marginal cost which in many cases would radically lower the costs for companies that want to re-use information. The proposal also includes that the burden of proof regarding the level of the fee should rest with the authority in question.
If the current timeframe is followed the EU Parliament should make its decision to accept the new PSI Directive at the end of the year.
This has meant that older applications can access the raw data that they require to a lower cost but it has also enabled development of new and innovative products.
Unfortunately the PSI Directive has not had a full impact in Sweden as many authorities impose conditions on re-use in direct violation of the PSI Directive such as that the information may not be re-used or that requests for re-use are not handled in a timely manner or that they continue to charge too high fees. As is clear from the PSI Directive and as is also clear from the special regulation that was under consideration in the TeliaSonera-case costs must be clearly accounted for if they are to be used as a basis for a fee.
In the proposal for a new PSI Directive the question regarding low charges for information is even more in focus and the marginal cost is proposed as the general rule instead of being merely a goal. We will monitor the authorities that already todaylead by example by giving away information without costs with great interest and we look forward to the new PSI Directive. Once the new PSI Directive has been adopted we will in a future newsletter explain the consequences for both the authorities that are to provide data and for the companies that will use the data, hopefully to a much lower cost.
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