Joana Covelo de Abreu (Editor and Key-staff member of CitDig Jean Monnet Centre of Excellence) 

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The European Union (EU) set a wider objective until 2030: to live a digital decade, where (personal and public) data is essential to grasp a data economy, i.e., an economy capable of, by promoting the European values, enhancing its growth through data processing, making European citizens to live better. In fact, it is expected that, until 2025, the volume of produced data can achieve the amount of 175 zettabytes worldwide: along with an increase of personal data processing, there is a growing trend concerning non-personal industrial and public data in the EU which must be properly exploited.[1]

Concerning public data, it should be widely available to empower people since, by doing so, we can reach a digitally “open, fair, diversified, democratic and confident” Europe. So, if leading a data economy is to be achieved, along with structural solutions concerning i) connectivity; ii) processing and storage of data; iii) computational capacity; and iv) cybersecurity, the EU ought to be able to v) improve its governing structures on data processing; and vi) widening quality data repositories where data can be used and reused.

Directive 2019/1024, on open data and the re-use of public sector information (recast), might be the cornerstone to achieve this data economy which might lead to effectively intelligent public spaces, where citizens and companies are truly included in the decision-making process.

This Directive, following the trend of Directive 2013/37/UE (former PSI Directive) – amending Directive 2003/98/CE on the re-use of public sector information –, aimed at making available a larger number of generated public data, especially to SME, but also to civil society and scientific community. In fact, Directive 2019/1024 is aimed at making publicly available more data, especially that data deriving from publicly funded initiatives. Furthermore, it also envisaged to update legal solutions to new advances concerning new information, communication and technological tools. In fact, “[m]inimum harmonisation of national rules and practices on the re-use of publicly funded information should contribute to the smooth functioning of the internal market and the proper development of the information society in the EU”[2]. In fact, previous legal regime was no longer adequate to answer two main demands of nowadays’ market: i) wider and numerous dynamic data; and ii) data from different sources [SWD(2018) 127 final, p. 8].

Concerning dynamic data, previous regime was not well designed to allow different access methods and to enhance re-use of this dynamic data by machines. As this data is of fundamental importance to the development of services that provide information in real time, Directive 2019/1024 is now aiming at “the provision of real-time access to dynamic data via adequate technical means” (recital 4) while allowing “citizens and legal entities to find new ways to use them and create new, innovative products and services” (recital 8). In this sense, “[d]ynamic data should therefore be made available immediately after collection, or in the case of a manual update immediately after the modification of the data set, via an application programming interface (API) so as to facilitate the development of internet, mobile and cloud applications based on such data” (recital 31).

Concerning obtaining data from different sources, there are still some barriers in the market’s functioning, especially motivated by public entities believing they should profit from their public data: this belief was repealed by the Impact Assessment, as it is unjustified from a macroeconomic standpoint since “[p]ublic sector information is a non-rivalrous good that can be re-used multiple times and its high price elasticity means that a decrease in price triggers a surge in usage” [SWD(2018) 127 final, p. 11]. Furthermore, Impact Assessment also noticed that charges concerning re-use of public data were still quite fragmented between Member States and within their public authorities, which could lead to discrimination between SME and start-ups when compared to multinational companies since the latter can easily support charging expenses to acquire access to public databases, while these can be out of reach of SME and start-ups. This fragmentation could have a strong impact in innovation levels of the EU. In order to face this, Directive 2019/1024 established a clearer regime, through Articles 6 and 7: “[d]ocuments should […] be made available for re-use free of charge and, where charges are necessary, they should in principle be limited to the marginal costs” (recital 36).

Despite several exceptions and limitations to Directive 2019/1024 scope of application, it is our belief it has created solutions to tackle major effectiveness issues concerning previous legal regime. However, maybe conscious about the structural limitations of this Directive, the European legislator included, under Article 18, a Commission evaluation tool to address the scope and social and economic impact of this Directive.

Insofar, it is urgent to unravel the role open and public data can play on creating intelligent environments. Smart cities combine technological, organizational, and political innovation to answer urban challenges in an intelligent way, allowing a vision of the future centered on governance, economy, mobility, environment, population and quality of life[3]. Smart cities are based on new technologies that rely on the use of extensive data, making them urban ecosystems hyperconnected where technological confluence happens[4].

Therefore, openness and transparency are top priorities on public policy to creating smarter cities, where the re-use of public data is vital: since urban ecosystems are based on differentiated structures – as those related to transports, energy, water supply, waste treatment –, these are able to create an enormous amount of public data from which is possible to deduce patterns usable by SME since they allow to detail interactions i) between citizens; ii) between them and the urban environment; iii) between urban infrastructures; and iv) between citizens, public services and companies[5].

This is the reason we believe smart cities can become “open data ecosystems”: departing from this metaphor, an ecosystem is a system of people, practices, values, and technologies in a local environment which interacts, through components relatively connected and with substantial interdependencies[6], where public data is generated and can be re-used.

In this context of reflexive interactions, users, technological innovators, data managers, political agents and stakeholders are mutually interdependent: while political agents aim economic, social, cultural and infrastructural development that a data economy can potentiate, users, technological innovators, data managers and other stakeholders benefit from the access to open data. Open data must, therefore, circulate between producers and users, from a cooperation standpoint that can lead to optimization, where stakeholders, as developing a mutual dependency, assume a common liability[7].

The ecosystem, to operate, needs an infrastructure which will be a physical and organizational structure that will rely on a technical and a social and human dimensions. The first will include all technological developments concerning collection, maintenance, treatment, and availability of open data as well as all material operations to make this data available on open and interoperable formats, usable by machines; the second will equate the role society and economic agents can play, thinking of political and legal models to regulate the new economy created by open data.

In this sense, smart cities can be the proper field to test this theoretic construction of open data ecosystem, enhancing an inclusion principle: on one hand, by promoting true and free competition between economic agents and, on the other hand, by stimulating openness and transparency of data held by public authorities, which can create benefits to the society at large.

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[1] This contribution is mildly inspired in the scientific paper, produced by this Author, themed “Dados abertos, reutilização de informações do setor público e cidades inteligentes – pistas para um princípio geral da inclusão”, produced under the Project “Smart Cities and Law, E.Governance and Rights: Contributing to the definition and implementation of a Global Strategy for Smart Cities”, reference number NORTE-01-0145-FEDER-00006.

[2] Cf. European Commission, “Shaping Europe’s digital future – From the Public Sector Information (PSI) Directive to the Open Data Directive”, 7 June 2022, https://digital-strategy.ec.europa.eu/en/policies/psi-open-data [last acess on 19.5.2023].

[3] See., among other, and on the concept of smart cities, Unai Aguilera, Oscar Peña, Oscar Belmonte and Diego López-Ipiña, Citizen-centric data services for smarter cities, in Future Generation Computer Systems, Volume 76, November 2017, Elsevier, available at https://doi.org/10.1016/j.future.2016.10.031; Alberto Abella, Marta Ortiz-de-Urbina-Criado and Carmen de-Pablos Heredero, A model for the analysis of data-driven innovation and value generation in smart cities’ ecosystems, in Cities, Volume 64, April 2017, Elsevier, available at https://doi.org/10.1016/j.cities.2017.01.011; and Fátima Trindade Neves, Miguel de Castro Neto and Manuela Aparício, The impacts of open data initiatives on smart cities: a Framework for evaluation and monitoring, in Cities, Volume 106, November 2020, Elsevier, available at https://doi.org/10.1016/j.cities.2020.102860.

[4] Fátima Trindade Neves, Miguel de Castro Neto and Manuela Aparício, The impacts of open data initiatives on smart cities: a Framework for evaluation and monitoring, in Cities, Volume 106, November 2020, Elsevier, p. 1, available at https://doi.org/10.1016/j.cities.2020.102860.

[5] Idem.

[6] Inspiration of “open data ecosystem” theorical construction is derived from Bastiaan van Loenen, Glenn Vancauwenberghe, Joep Crompvoets e Lorenzo Dalla Corte, Chapter 1 – Open Data Exposed, in Bastiaan van Loenen, Glenn Vancauwenberghe and Joep Crompvoets (Eds.), Open Data Exposed, IT&Law 30 – Information Technology and Law Series, Springer, 2018, p. 4. However, these authors have not developed the concept to adapt it to smart cities, which is the aim of this paper. 

[7] Idem, pp. 4 and 5.

Picture credits: by Element5 Digital on Lukas on Pexels.com.