Artificial intelligence and PSI Directive (EU) – open data and the re-use of public sector information before new digital demands

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator


In Ursula von der Leyen’s speech entitled “A Union that strives for more”, one of nowadays President of the European Commission’s priorities was to establish “a Europe fit for digital age”. In this sense, von der Leyen’s aspirations were to grasp the opportunities from the digital age within safe and ethical boundaries, particularly those deriving from artificial intelligence as “[d]igital technologies […] are transforming the world at an unprecedented speed”. Therefore, the President of the European Commission established that “[i]n my first 100 days in office, I will put forward legislation for a coordinated European approach on the human and ethical implications of Artificial Intelligence”. Last 1st December 2019, the European Commission took office, led by President Ursula von der Leyen. As that time lapse is passing by, there is a need to understand how a Europe fit for the digital age is taking shape. There is to say, has the European Union already made efforts to meet that digital age?

In fact, recalling Digital4EU Stakeholder Forum, held in Brussels, on the 25th February 2016, Digital Single Market was thought by inception in order to materialise it as a primary public interest in action. Concerning digital public services, it was highlighted that some of them were not as transparent as they should and that “Governments need[ed] to look at how to re-use the information already available […] and open up the data they h[ad], while adapting to current trends and making use of public services easy and simple”. In order to do so, this forum established that “Member States should implement the once only principle: once only obligation, re-use of data, making the best use of key enablers and thinking cross-border services from inception”.

In the aftermath, 2016-2020 e-Government Action Plan [Accelerating the digital transformation of government, COM(2016) 179 final] determined that, by 2020, public administrations “should be open, efficient and inclusive, providing borderless, personalised, user-friendly, end-to-end digital public services” through the establishment of a set of general principles which combined traditional ones with new digitally driven ones. In fact, it established openness and transparency – a traditional principle – but managed to revisit it with a new and improved approach: “public administrations should share information and data between themselves and enable citizens and businesses to access control and correct their own data; enable users to monitor administrative processes that involve them; engage with and open up to stakeholders (such as businesses, researchers and non-profit organisations) in the design and delivery of services”. These principles were presented alongside with the once only principle. In the same catalogue, interoperability by default also is approached as a general principle in order to allow public services “to work seamlessly across the Single Market and across organisational silos, relying on the free movement of data and digital services in the European Union”.

In fact, since this Action Plan, the European Commission underlined that “by opening up public sector data and services and facilitating their re-use by third parties in due respect of the ‘Trustworthiness & Security’ principle, public administrations can foster new opportunities for knowledge, growth and jobs” and, cumulatively, by “opening their data, public administrations become more transparent, increasing their accountability while getting closer to their citizens”.

The recast of Directive on open data and the re-use of public sector information – usually known as PSI Directive 2019 – entered into force on 17 July 2019 [Directive (EU) 2019/1024 of the European Parliament and of the Council]. In fact, former Directive 2003/98/EC (PSI Directive) had been already “substantially amended” and as new amendments should be made, there was the need to adopt a new legal act to ascertain the maintenance of clarity.

In fact, both the European Commission and stakeholders understood that, across the European Union, “a wide re-use of public sector and publicly funded information” had to be in the political and legislative agenda “[…] in order to bring legislative framework up to date with the advances in digital technologies and to further stimulate digital innovation, especially with regard to artificial intelligence” (recital 3).

PSI Directive 2019 aims at establishing use of open data and stimulating innovation in products and services by setting minimum rules to govern the re-use of existing documents held, among others, by public sector bodies of the Member States and research data [article 1 (1) of the Directive]. In this sense, public sector body stands for “the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law” [article 2 (1) of the Directive] and document means 1) “any content whatever it medium (paper or electronic form or as a sound, visual or audiovisual recording)”; or 2) “any part of such content” [article 2 (6)].

On the other hand, research data corresponds to “documents in a digital form”, produced / collected in scientific activities, and used as evidence to validate the research findings and results [article 2 (9) of the Directive]. In sequence, re-use stands for, in essence, the use by individuals, businesses or other legal entities of documents held by public bodies or public undertakings for commercial and non-commercial purposes [article 2 (11) of the Directive].

PSI Directive 2019 enshrined major changes in order to “fully exploit the potential of public sector information for the European economy and society”, focusing on 1) “the provision of real-time access to dynamic data via adequate technical means”; 2) “the increase of the supply of valuable public data for re-use, including from public undertakings, research performing organisations and research funding organisations”; 3) “the tackling of the emergence of new forms of exclusive arrangements”; and 4) “the use of exceptions to the principle of charging the marginal cost and the relationship between this Directive and certain related legal instruments” – as GDPR, Directive 96/9/EC on legal protection of databases, Directive 2003/4/EC on public access to environmental information and Directive 2007/2/EC establishing an Infrastructure for spatial information in the European Community (INSPIRE) (recital 4).

Furthermore, as access to information is a fundamental right – particularly to receive and impart information and ideas without interference by public authority and regardless of frontiers –, the European Union had to also promote and enforce, in its juridical sphere, its highest level of protection. In the same sense, it also gains particular importance in the development of Union’s internal market (based on a system of ensuring that competition is not distorted) since “[h]armonisation of the rules and practices in the Member States relating to the exploitation of public sector information contributes to the achievement of those objectives” (recital 7).

Public sector represents “an extraordinary source of data” that can impact on internal market’s improvement by enabling new applications for individuals, businesses and public authorities. So, this data can be subjected to processing methods, namely through new technologies (such as artificial intelligence), which “can have a transformative effect on all sectors of the economy” (whereas 9); only then general public interest can be particularly achieved as, a time where continuous and rapid evolution in technologies, these can also be thought to improve public entities and individuals and businesses relations. However, to achieve this goal – as these digital developments are built upon the use, aggregation or combination of data –, interoperable systems between public authorities of Member States have to continue to be settled since the once-only principle was only developed and ascertained as the primal principle of a Digital Single Market as interoperability was the method to ease its fulfilment.

Therefore, “[b]road, cross-border geographical coverage will also be essential in this context” as there is a need to increase the possibility of re-using public data by Union businesses and civil society because it is a way to expand accountability and transparency of public sectors (recital 13).

When digital path started to be designed in a macro perspective – the one the European Union can propitiate –, Digital Single Market was established through the European Union’s shared competences on deepening and developing its internal market. In the same diapason, the Commission, by presenting the legislative proposal for the revision of previous PSI Directive, aimed at “strengthen[ing] the position of SMEs by dismantling market barriers [by] reusing public sector information for commercial purposes”.

In fact, this European institution was able to define three major barriers: 1) “data generated by utilities, transport and publicly funded research has tremendous reuse potential, but is not covered by the current rules, even though much of this research is fully or partly funded by public money”; 2) “real time access to public sector information is rare” when it could be an advantage if the development of products and services could use real-time information, “such as meteorological and transport apps”; and 3) “the re-use of PSI data can be very expensive, depending on the public institution offering it”[i]. These three factors were endangering the establishment of a free movement of data and the settlement of an economy of data.

PSI Directive 2019 remembers this economic calling: “one of the principal aims of the establishment of an internal market is the creation of conditions conductive to the development of services and products Union-wide and within Member States” and “[p]ublic sector information or information collected, produced, reproduced and disseminated within the exercise of a public task or a service of general interest, is an important primary material for digital content products and services and will become an even more important content resource with the development of advanced digital technologies” (recital 13). However, there is a need to promote a regulation on how that open data and public information will be re-used so it can “ensure fair, proportionate and non-discriminatory conditions for the re-use of such information” (recital 20).

In this sense, this PSI Directive 2019 aims at deepening digital transformation to truly meet a trustworthy free circulation of data, by focusing now on open data and public information.

PSI Directive 2019 comes into light when digital path began its course by sensitizing individuals of their rights, particularly their ownership over their personal data and how public services should behave before this new awareness developed in the general public. When that path is already being paved, the European Union departs to another accomplishment concerning Digital Single Market – the one to promote a free movement of data or, as the Estonian Vision Paper called it, the “fifth freedom of the European Union”. In order to accomplish it, the European Union started by establishing minimum rules concerning making open data and public information more visible, accessible and appealing to individuals and businesses, highlighting its vital role on deploying new services, products and jobs.

Through this approach, interoperability continues to appear as the method to allow this result: only truly connected public administrations can provide harmonised open data and display public information in order to achieve more transparency and accountability to the exercise of public power. On the other hand, this improved approach accomplishes another feature of the once-only principle: if, in the first instance, this principle aimed at reducing administrative burden to individuals and companies when relating to public administration so they were not demanded to provide repetitive information (it was acting within public services), nowadays we can understand a new feature to it – the one that redefines its item of re-use as the one that allows individuals and businesses to re-use open data and public information to develop new services and products.

Only time will show how improvements in economic sectors will also derive from this new approach on open data and public information and, concerning artificial intelligence, the European Commission will be able to meet its President timetable…

[i] See European Parliament, Legislative train Schedule – Connected Digital Single Market. Review of the public sector information (PSI) Directive, in https://www.europarl.europa.eu/legislative-train/theme-connected-digital-single-market/file-review-of-the-psi-directive [access: 06.02.2020].

Pictures credits: open data stickers by jwyg.

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