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The European Publishers Council response to the consultation on access to and exploitation of public sector information

The European Publishers Council

The European Publishers Council (EPC) is a high level group of Chairmen and Chief Executives of leading European media corporations actively involved in multimedia markets spanning newspaper, magazine, Internet and on-line database publishing.  Many EPC members also have significant interests in private television and radio. A list of members is attached.

The EPC is keen to work with the Commission and the Rapporteur to ensure that a high-quality piece of legislation can be produced.

The response is structured in the form of answers to the questions provided by the Rapporteur as part of his consultation of stakeholders.

Question 1: Is it appropriate for Public Sector Bodies to make a profit ("a reasonable return on investment") with information that has already been paid for by tax payers? If so, what would a reasonable return on investment be?

In the view of the European Publishers Council, charges should not exceed marginal cost recovery in supplying the data to the commercial publisher, which for many years has been the case for Federal government PSI in the United States. However, we are aware that in the short term at least, this is unlikely to be achieved due to some resistance at Council level.

Therefore, with some reluctance, we support the concept of PSI being sold at commercial prices, provided pricing is reasonable, non-discriminatory and transparent.

What is a reasonable return on investment?

The European Publishers Council cannot provide a scientific benchmark. However, we would suggest that an example of good practice is the methodology on price controls applied by telecommunications regulators to monopoly suppliers of telecommunications services. The aim of the UK regulator (OFTEL) for example is to ensure that the monopoly supplier earns its “cost of capital”. The cost of capital is defined as the minimum rate of profit that a company needs in order to invest. We believe there may be many examples of price control model precedents in the telecommunications sectors that could be adapted to provide guidance also for PSI.

Other concerns related to the charging principle

In many cases, the public sector body will be the monopoly source of PSI.  In view of this fact, it is essential that there is close oversight of charging by competition authorities to ensure that pricing is reasonable, non-discriminatory and transparent.

In the opinion of the EPC, the establishment of a specialist body within the European Commission to deal with this issue would be the best solution.   This body would have responsibility for monitoring trading practices in PSI, comparing pricing and other commercial practices across Member States and issuing guidance on price issues.

The EPC refers you once again to the example it has given of the telecommunications sector.  In this area, particularly in the early years of telecommunications liberalisation, the Commission was active in monitoring pricing issues and publishing guidance.

Question 2: How can it be guaranteed that market parties pay the same price for public sector information as commercial parts of public sector bodies, i.e. how can a level playing field be established? Article 7 (non-discrimination), part 3 refers to this issue, but how should this be put into practice?

In order to avoid problems with bookkeeping, one might consider not charging at all for public sector information.

The specialist body, which the European Publishers Council proposed earlier in this response should be given the task of monitoring pricing practices and issuing guidance on bookkeeping standards expected in the area of Public Sector Information.

Of course, making no charge at all—or at least no charge exceeding the marginal costs of making the data available to the commercial publisher—would eliminate the issue of discriminatory pricing in favour of other public sector bodies. However, as suggested earlier in this response, the EPC is of the opinion that marginal cost prices would not be acceptable at this stage to many Member States.

Question 3: Should PSI be excluded from copyright and database rights?

The European Publishers Council believes that PSI should be excluded from copyright and database rights, as it is in the United States.  If information were provided free of charge, then copyright would not be an issue.

The dangers inherent in public sector bodies retaining IPR in PSI can be significantly neutralised by imposing fair trading rules on the licensing of data.

In those cases where PSI is a monopoly, it will usually be regarded as like a public utility, and therefore subject to the line of helpful rulings from the European Court of Justice addressing abuses by monopoly publishers.

Question 4: How should the issue of access to information be dealt with in a directive? For example:

• Harmonising access regimes in 15 MS: for instance, harmonising the exceptions in access laws in MS. If one wants to operate on the internal market, the same type of information should be accessible in every MS, in order to create truly pan-European information products.

• Defining practical criteria that will lead to (better) accessibility of information, but leaves room for MS to decide what kind of access regime they want to choose? For example: publishing lists on the internet that indicate which type of information is available (for re-use).

Access Regimes

The European Publishers Council believes that accessibility to PSI should be harmonised across the EU.

Licensing

This harmonisation would be accelerated by imposing a positive obligation on Member States to license PSI to any third party publisher on a non-exclusive basis.

Exclusive licensing could only be justified where it was indispensable to the PSI itself being made available e.g. PSI that has so little public interest that it would be uneconomic to publish without the benefit of an exclusive licence.

Monitoring of access practices

As previously mentioned, the specific body set up by the European Commission could monitor practices in Member States and issue guidance. This body would have a considerable influence in harmonising access practices across Member States.

Examples of the work it could do in this area would be:

• to produce guidelines on the minimum requirements for which type of document should be available, whilst stressing that information provision should be as wide-ranging as possible;
• to ensure that unfair delays in provision of information are avoided;
• to act as an ombudsman in the case of dispute over refusal to provide information.

Question 5: Should it not be the purpose of the directive to include as many types of information as possible, and therefore not exclude, according to article 1), part 2 (e) and (f) of the proposal, the documents held by educational and research establishments (schools, universities, research facilities etc.) and documents held by cultural establishments (museums, libraries etc.)?

Or, is it desirable to limit the scope even further to only basic information (basic information of a democratic constitutional state, such as legislative texts, public court judgements et cetera)?

The European Publishers Council supports the widest possible scope of the directive but recognises the political difficulties for certain Member States in removing the exceptions noted in this question.

It is the EPC’s belief that it would be reasonable to clarify that these exceptions only extend to published documents.  Unpublished documents a commercial publisher wishes to use should not be included.  Previously published information such as museum catalogues and academic studies would be protected, whilst at the same time allowing for the use of commercially viable unpublished information by interested parties.

Question 6: Is it appropriate that Public Sector Bodies are not obliged to allow re-use? Does this comply with the general goal we are trying to achieve with this directive?

The European Publishers Council believes that there should be a positive obligation on public bodies to license PSI, except in clearly defined and legitimate circumstances.  Examples of these circumstances include confidential data on individuals and data which is subject to State secrecy laws.  As previously mentioned in this submission, the body which the EPC has recommended be established by the Commission should have the mandate to act as ombudsman in the event of any dispute in this area.

Conclusion

This is a summary of the EPC recommendations for improvement of the draft directive:

• Charges for PSI should not exceed marginal cost recovery;
• Charges should be reasonable, transparent and non-discriminatory-the telecoms model could be used as a basis for their determination;
• A specialist body should be created by the Commission which deals with pricing and accessibility issues;
• PSI should be excluded from copyright and database rights;
• PSI accessibility should be harmonised across the EU;
• The scope of the directive should be as wide as possible;
• There should be a positive obligation on Public Sector bodies to license PSI.The Public Sector Information directive will increase the transparency and intelligibility of public sector activities. New products based on PSI content will increase the interest and motivation of European citizens to use the internet and thus promote internet literacy.

For these reasons, the European Publishers Council enthusiastically supports the Commission’s efforts to make access to public sector information a reality for the tax payers who fund the production of this information.

The EPC welcomes Mr Van Velzen’s  wide consultation of stakeholders in this area and looks forward to working closely with him and the Commission to produce a piece of legislation that is considered to be fair by all.

Members of the European Publishers Council

Chairman: Mr Francisco Balsemao, Chairman and CEO, Impresa, Portugal
Honourary President: Sir Frank Rogers, Telegraph Group Ltd., UK

Members:
Mr Kjell Aamot, CEO, Schibsted, Norway
Mr David Bell, Chairman, Financial Times Group, UK
Mr. Jose-Maria Bergareche, CEO, Grupo Correo, Spain
Mr Carl-Johan Bonnier, Chairman, The Bonnier Group, Sweden
Mr Oscar Bronner, Publisher & Editor in Chief, Der Standard, Austria
Dr Hubert Burda, Chairman and CEO, Burda Media, Germany
Dr Carlo Caracciolo, President, Editoriale L’Espresso, Italy
Mr Juan Luis Cebrian, CEO, Groupo Prisa, Spain
Mr Daniel Colson, Deputy Chairman and Chief Executive, Telegraph Group Ltd, UK
Mr Crispin Davis, Chief Executive, Reed Elsevier,
Dr Mathias Dopfner, Chief Executive, Axel Springer Verlag, Germany
Mr Philip Graf, Chief Executive, Trinity Mirror plc, UK
Mr Leslie Hinton, Executive Chairman, News International, UK
Dr Stefan von Holtzbrinck, Verlagsgruppe Georg von Holtzbrinck GmbH
Mr Tom Glocer , Chief Executive, Reuters plc
Mr Steffen Kragh, President and CEO, The Egmont Group, Denmark
Mr Bernd Kundrun, Chief Executive, Gruner + Jahr, Germany
Mr Christos Lambrakis, Chairman & Editor in Chief, Lambrakis Publishing Group, Greece
Mr Gaetano Mele, Rizzoli Corriere della Sera, Italy
Mr Gavin O’Reilly, Chief Executive, Independent Newspapers PLC, Ireland
Mr Jaakko Rauramo, Chairman and CEO, SanomaWSOY Corporation, Finland
Mr Gerald de Roquemaurel, Chairman and CEO, Hachette Filipacchi Medias, France
Mr Michael Ringier, President, Ringier, Switzerland
The Rt. Hon. The Viscount Rothermere, Chairman, Daily Mail and General Trust, UK
Mr A. J. Swartjes,  De Telegraaf, Netherlands
Mr Antoine de Tarle, Chief Executive, Societe Ouest-France S.A., France
Mr R.F. Van den Bergh, Chairman, VNU, Netherlands
Mr Christian van Thillo, Chief Executive, De Persgroep, Belgium

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