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Francisco Pinto Balsemão
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Response to the European Commission Green Paper on Public Sector Information in the Information Society


The European Publishers Council has long supported the publication of a Green Paper on Access to Public Sector Information. Issues of access to public sector information and the commercial exploitation of such information are very important to publishers. Our members have been concerned about continuing delays and would urge the Commission to adopt this Green Paper without further delay.

There are many differences in attitude and practice throughout the EU ranging from the secretive approach in France to the open and transparent regime in Finland. The advent of the Internet and the World Wide Web has revolutionized attitudes to access to information of all types. Much of the information which has previously been hidden from public scrutiny is now widely available – with or without government knowledge or support! Equally, many Governments have already seized the opportunities offered by technological developments to improve communication with the public through their web sites and on-line search facilities. The public sector cannot remain immune from the realities of the information society and the Commission must proceed with this important initiative.

Questions posed by DG III/C.5:

1. Do different copyright regimes within Europe represent a problem? If so in what way?

Different copyright regimes are a problem. Copyright is a very sensitive area and requires specialized lawyers to fully understand it. The difference in regimes increases uncertainty in the transaction of rights, makes it more difficult and contributes to the higher cost of European rights. This puts us at a competitive disadvantage as compared to publishers in the US. Employment-related rights are not harmonised in the EU which creates distortion of competition within the EU. Details of the different legal regimes are available on request.

SME’s are particularly affected by this situation, since they cannot afford the cost of multinational legal advice. The multimedia industry (CD-Roms, etc) is also very much affected. I am sure that, today, there are numerous breaches of copyright, not voluntarily, but because the companies do not have adequate information and advice.

As far as public sector information is concerned, works are often protected by copyright and the new sui generis right. This raises two points of interest: a) public authorities are able to use their exclusive rights to prevent publication of such works which, in the case of the press, is often against the public interest but b) as the ownership of rights has not been harmonised, works created during the course of employment, unless assigned through contract, will remain with the employee in many EU Member States. Public authorities will increasingly face similar problems over secondary exploitation if their employees demand subsequent payment.


2. Would a policy of harmonisation or approximation of these regimes be appropriate or are there other solutions to this difficulty?

Harmonisation would be important but with careful thought (see below). Self-regulation is not appropriate to solve these problems. The only other alternative is through contract which is the most common method. As stated above, harmonisation of the ownership of rights would improve the competitiveness of European publishers, but only if the ownership was harmonised in favour of the employer! There is a big risk in embarking on this path, as the “author” lobby is very powerful at European level. The publishers in the UK, Ireland and the Netherlands would not want to risk losing their statutory rights of ownership through a process of harmonisation. In recent times, publishers in other countries have attempted to solve this problem through contract and in many cases have succeeded. It would be better to hold back on harmonisation until employers have more widespread control over their employees’ works through contract so that a statutory assignment would be more acceptable.


3. Which public sector activities require priority attention with regard to the balance between rights of access and the protection of privacy?

Public policy documents, such as laws, regulations, consultative documents, etc. should be made available (as is the case in Finland). It might be possible to devise a register of interested parties who could have regular access to documents. There are some types of information that shouldn’t be available to the public and these areas are obvious: taxes, health and other personal information. Even the information in the public registers must also be carefully handled. If public registers were open one would have information about mortgages, family situation (number of children, divorces), houses and cars owned, shares in companies, addresses, criminal records, etc, etc. This type of information is obviously important for journalists and some information about politicians, civil servants, judges or some other professions might be disclosed, but I am not sure about the solution regarding the population as a whole.


4. Should inventories and directories of public sector information resources be established?

Yes, but only if this actually improved access and transparency.


5. If so, what is the most effective way to encourage their establishment?

Further research would be useful to establish a list of options which could then be presented through a Recommendation to the Member States.


6. Should there be priority public sector information areas for which such inventories and directories could first be established and, if so, which ones?

There would have to be priorities, the work must start somewhere, but I’m not sure where! Again a small piece of research (as in 5) would help prioritize.


7. Are specific provisions required to deal with liability in relation to public sector information?

Maybe, although in principle rules on liability should be horizontal and apply equally to all types of information. Application of general law on matters such as defamation should work across the board.

If you require further input from the EPC and its members, please do not hesitate to contact me and in the spirit of openness and access we would appreciate early sight of the complete draft Green Paper! Our answers to your selection of questions are offered in good faith but we must reserve the right to amend these once we have seen the full text.


Angela Mills
Executive Director

European Publishers Council


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