The interface of rights to access public sector information and copyright: Opinion of the European Copyright Society

The European Copyright Society (ECS) recently published its Opinion on the interface of rights to access public sector information and copyright.  The Executive Summary is reproduced below and the full Opinion is available here.

Executive Summary

There exists significant tension between rights to access public sector information and the current copyright acquis. The right to information is fundamental for transparency, democratic accountability, and citizen participation. It is enshrined in international and national fundamental rights law, including the EU Charter of Fundamental Rights. However, Member States apply divergent rules regarding the copyright status of official documents such as legislation, judicial decisions, and administrative acts. This is in keeping with the freedom that the Berne Convention allows under articles 2(4) and 11bis BC. The concept of work as harmonized to date offers no solution, and existing copyright instruments only indirectly touch upon the relationship, while more recent EU instruments —the Open Data Directive (2019) and the Data Governance Act (2022)—explicitly promote openness and re-use of public sector data. The Public.Resource.Org judgment of the Court of Justice of the European Union (CJEU) brought the tension between copyright and access rights to the fore. It is time the EU acts on at least the following two points to ensure legal certainty, safeguard transparency, and strike a fair balance between openness of public information and protection of creative works: 1) Establish uniform rules that exclude official documents from copyright protection, and 2) Make explicit that copyright instruments are without prejudice to access rights based on transparency obligations in EU and national laws. Laws on copyright, databases and related rights should not undermine transparency laws, at a minimum not where intellectual property is public sector owned.

The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law and policy. Its members are scholars and academics from various countries of Europe, seeking to articulate and promote their views of the overall public interest on all topics in the field of authors rights, neighbouring rights and related matters. The ECS is neither funded nor instructed by any particular stakeholders. Its Opinions represent the independent views of a majority of ECS members.