The European Commission, with the publication of the “European data strategy” document of 2020, launched the five-year strategic plan for the creation of the European Common Data Space and the Data-based digital economy. The plan starts from the observation that the two major “players” of the digital global market based on data – United States and China – record some basic defects: the first, market the development of the digital economy, with the consequence of having generated the predominium of the Big Tech and the phenomenon of uncontrolled concentrations; the second is characterized, on the one hand, for public indiscriminate surveillance, on the other, for the “strong control of Big Tech companies on massive amounts of data, without sufficient guarantees for citizens.”
From this analysis it is inspired by the search for a European road “which allows to balance the flow and the extensive use of data while maintaining high levels of privacy, security, protection and ethical standards“. The strategy, therefore, pursues the objective of making the EU a global leader of the digital market, recovering the accumulated delay. “In 2019, the EU27 plus the United Kingdom generated a data market value about 2.5 times lower than that produced in the United States (72.3 billion euros in the EU against almost 185 billion euros in the United States) in the same year” (European Data Market Monitoring Tool, “Edm”).
If the digital economy is one of the major levers for world economic development, the data represents the natural fuel. Based on public consultations and comparisons with the different stakeholders, the European Commission came to the conclusion that a clear regulatory framework at Union level was essential to facilitate re-use and free movement of data. For this purpose, some legislative initiatives have been proposed, including what is then become the Open Data Directive.
On 17 July 2021 the deadline for Member States to implement the directive on open data and the re-use of public sector information (Dir. 2019/1024) in the national legal system, expires.
The Open Data provides for the recasting (ie, it replaces) Directive 2003/98/EC, concerning the re-use of the information held by the public sector, to reduce obstacles to re-use and to adapt the legislative framework to new technologies.
The basic principle introduced by the directive is that all the contents of the public sector to which it is possible the access to documents, according to national law, are in principle freely available for re-use, both for commercial and non-commercial purposes. The re-use of the data, subject to third party rights (e.g. intellectual property, data protection) is instead addressed by the proposed regulation called Data Governance Act (“DGA”), which we will examine in the future.
Public entities that make data available must comply with the principles of transparency, non-discrimination and not exclusivity set out by the directive and guaranteeing the use of adequate data formats and methods of dissemination.
The directive essentially refers to non-personal data but also regulates the hypotheses of systems with “personal” and “non-personal” data, by recognizing the prevalence of the GDPR on its own rules. The delicate aspect of the interplay between GDPR and the disciplines on data free re-use and circulation will be the subject of a next episode.
Discipline of requests and conditions of re-use
Requests to reuse must be examined in a reasonable time lapse consistent with that provided for access to documents. The re-use is free but the recovery of marginal costs incurred for the provision and accessory operations can be authorized.
The data, if possible, must be made available to the applicant electronically in open formats, mechanically legible, accessible, available and reusable, together with the respective metadata.
The “dynamic” data (i.e. documents in digital format, subject to frequent or real-time updates, due to their volatility or rapid obsolescence, including sensor data) must be made available for reusing immediately after collecting, through application program interfaces (APIs). The directive stresses that this is particularly important for “dynamic data”, whose economic value depends on the immediate availability of information and regular updates.
Member States must adopt practical modes to facilitate the search for documents available for re-use.
Importance of data
In the recitals of the Open Data Directive, it is shown that the wide range of information available to the public sector of the Member States and the consequent possibility of re-use of this information allows all Union companies, including micro-enterprises and SMEs, and to civil society, to exploit the potential and contribute to economic development as well as important social objectives such as empowerment and transparency.
The data market is the one in which digital data is exchanged as products or services, obtained from the processing of raw data. The data market values calculated by the European Data Market Monitoring Tool (estimates referred to 2019), as highlighted in the above chromatic map, shows the head positions by UK (€ 17 billion) and Germany (€ 16.3 billion) followed by France (€ 9.5 billion) and Italy (€ 5.6 billion).