Friends or Foes? Creative Commons, Freedom of Information Law and the EU Framework for Re-Use of Public Sector Information

Abstract

Public authorities keep vast amounts of information. Freedom of information (‘FOIA’) laws give the public rights of access to much public sector information. The spread of FOIAs across the globe testifies to their importance as instruments for enhancing democratic accountability. But access to public sector information not only serves political purposes. It is also thought to have economic benefits, enabling the development of new information products and services. This is the policy objective behind the EU Directive 2003/98 on the Re-use of Public Sector Information (PSI Directive).

Despite popular belief to the contrary, much public sector information is subject to intellectual property rights. Both access to public sector information for democratic purposes and for economic purposes have implications for how intellectual property rights in information produced by governments are exercised. Rather curiously perhaps, FOIA’s are generally silent on the issue. Nor does the PSI Directive prescribe how public sector bodies should exercise any exlcusive rights in information. This paper explores the role of copyright policy in the light of the objectives and principles of both freedom of information law and the regulatory framework for re-use of public sector information. More specifically, it queries whether open content licenses like Creative Commons are indeed the attractive instrument they appear to be for public sector bodies that seek to enhance transparent access to their information, be it for purposes of democratic accountability or re-use for economic or other uses.

Keywords: copyright, government data, freedom of information, re-use of public sector information, EU Directive 2003/98