Directive 2013/37/EU of the European Parliament and of the CouncilShow full title

Article 1

Directive 2003/98/EC is amended as follows:

(1)

Article 1 is amended as follows:

(a)

paragraph 2 is amended as follows:

(i)

point (a) is replaced by the following:

‘(a)

documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as defined by law or by other binding rules in the Member State, or in the absence of such rules, as defined in line with common administrative practice in the Member State in question, provided that the scope of the public tasks is transparent and subject to review;’;

(ii)

point (c) is replaced by the following:

‘(c)

documents which are excluded from access by virtue of the access regimes in the Member States, including on the grounds of:

• the protection of national security (i.e. State security), defence, or public security,

• statistical confidentiality,

• commercial confidentiality (e.g. business, professional or company secrets);’;

(iii)

the following points are inserted:

‘(ca)

documents access to which is restricted by virtue of the access regimes in the Member States, including cases whereby citizens or companies have to prove a particular interest to obtain access to documents;

(cb)

parts of documents containing only logos, crests and insignia;

(cc)

documents access to which is excluded or restricted by virtue of the access regimes on the grounds of protection of personal data, and parts of documents accessible by virtue of those regimes which contain personal data the re-use of which has been defined by law as being incompatible with the law concerning the protection of individuals with regard to the processing of personal data;’;

(iv)

point (e) is replaced by the following:

‘(e)

documents held by educational and research establishments, including organisations established for the transfer of research results, schools and universities, except university libraries and’;

(v)

point (f) is replaced by the following:

‘(f)

documents held by cultural establishments other than libraries, museums and archives.’;

(b)

paragraph 3 is replaced by the following:

‘3. This Directive builds on and is without prejudice to access regimes in the Member States.’;

(c)

in paragraph 4, the word ‘Community’ is replaced by the word ‘Union’.

(2)

The following points are added to Article 2:

‘6.

‘machine-readable format’ means a file format structured so that software applications can easily identify, recognize and extract specific data, including individual statements of fact, and their internal structure;

7.

‘open format’ means a file format that is platform-independent and made available to the public without any restriction that impedes the re-use of documents;

8.

‘formal open standard’ means a standard which has been laid down in written form, detailing specifications for the requirements on how to ensure software interoperability;

9.

‘university’ means any public sector body that provides post-secondary-school higher education leading to academic degrees.’.

(3)

Article 3 is replaced by the following:

‘Article 3 General principle

1. Subject to paragraph 2 Member States shall ensure that documents to which this Directive applies in accordance with Article 1 shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV.

2. For documents in which libraries, including university libraries, museums and archives hold intellectual property rights, Member States shall ensure that, where the re-use of such documents is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV.’.

(4)

In Article 4, paragraphs 3 and 4 are replaced by the following:

‘3. In the event of a negative decision, the public sector bodies shall communicate the grounds for refusal to the applicant on the basis of the relevant provisions of the access regime in that Member State or of the national provisions adopted pursuant to this Directive, in particular points (a) to (cc) of Article 1(2) or Article 3. Where a negative decision is based on Article 1(2)(b), the public sector body shall include a reference to the natural or legal person who is the rightholder, where known, or alternatively to the licensor from which the public sector body has obtained the relevant material. Libraries, including university libraries, museums and archives shall not be required to include such a reference.

4. Any decision on re-use shall contain a reference to the means of redress in case the applicant wishes to appeal the decision. The means of redress shall include the possibility of review by an impartial review body with the appropriate expertise, such as the national competition authority, the national access to documents authority or a national judicial authority, whose decisions are binding upon the public sector body concerned.’.

(5)

Article 5 is replaced by the following:

‘Article 5 Available formats

1. Public sector bodies shall make their documents available in any pre-existing format or language, and, where possible and appropriate, in open and machine-readable format together with their metadata. Both the format and the metadata should, in so far as possible, comply with formal open standards.

2. Paragraph 1 shall not imply an obligation for public sector bodies to create or adapt documents or provide extracts in order to comply with that paragraph where this would involve disproportionate effort, going beyond a simple operation.

3. On the basis of this Directive, public sector bodies cannot be required to continue the production and storage of a certain type of documents with a view to the re-use of such documents by a private or public sector organisation.’.

(6)

Article 6 is replaced by the following:

‘Article 6 Principles governing charging

1. Where charges are made for the re-use of documents, those charges shall be limited to the marginal costs incurred for their reproduction, provision and dissemination.

2. Paragraph 1 shall not apply to the following:

(a) public sector bodies that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks;

(b) by way of exception, documents for which the public sector body concerned is required to generate sufficient revenue to cover a substantial part of the costs relating to their collection, production, reproduction and dissemination. Those requirements shall be defined by law or by other binding rules in the Member State. In the absence of such rules, the requirements shall be defined in accordance with common administrative practice in the Member State;

(c) libraries, including university libraries, museums and archives.

3. In the cases referred to in points (a) and (b) of paragraph 2, the public sector bodies concerned shall calculate the total charges according to objective, transparent and verifiable criteria to be laid down by the Member States. The total income of those bodies from supplying and allowing re-use of documents over the appropriate accounting period shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment. Charges shall be calculated in line with the accounting principles applicable to the public sector bodies involved.

4. Where charges are made by the public sector bodies referred to in point (c) of paragraph 2, the total income from supplying and allowing re-use of documents over the appropriate accounting period shall not exceed the cost of collection, production, reproduction, dissemination, preservation and rights clearance, together with a reasonable return on investment. Charges shall be calculated in line with the accounting principles applicable to the public sector bodies involved.’.

(7)

Article 7 is replaced by the following:

‘Article 7 Transparency

1. In the case of standard charges for the re-use of documents held by public sector bodies, any applicable conditions and the actual amount of those charges, including the calculation basis for such charges, shall be pre-established and published, through electronic means where possible and appropriate.

2. In the case of charges for the re-use other than those referred to in paragraph 1, the public sector body in question shall indicate at the outset which factors are taken into account in the calculation of those charges. Upon request, the public sector body in question shall also indicate the way in which such charges have been calculated in relation to the specific re-use request.

3. The requirements referred to in point (b) of Article 6(2) shall be pre-established. They shall be published by electronic means, where possible and appropriate.

4. Public sector bodies shall ensure that applicants for re-use of documents are informed of available means of redress relating to decisions or practices affecting them.’.

(8)

In Article 8, paragraph 1 is replaced by the following:

‘1. Public sector bodies may allow re-use without conditions or may impose conditions, where appropriate through a licence. These conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition.’.

(9)

Article 9 is replaced by the following:

‘Article 9 Practical arrangements

Member States shall make practical arrangements facilitating the search for documents available for re-use, such as asset lists of main documents with relevant metadata, accessible where possible and appropriate online and in machine-readable format, and portal sites that are linked to the asset lists. Where possible Member States shall facilitate the cross-linguistic search for documents.’.

(10)

Article 11 is amended as follows:

(a)

the following subparagraph is added to paragraph 2:

‘This paragraph shall not apply to digitisation of cultural resources.’;

(b)

the following paragraph is inserted:

‘2a. Notwithstanding paragraph 1, where an exclusive right relates to digitisation of cultural resources, the period of exclusivity shall in general not exceed 10 years. In case where that period exceeds 10 years, its duration shall be subject to review during the 11th year and, if applicable, every seven years thereafter.

The arrangements granting exclusive rights referred to in the first subparagraph shall be transparent and made public.

In the case of an exclusive right referred to in the first subparagraph, the public sector body concerned shall be provided free of charge with a copy of the digitised cultural resources as part of those arrangements. That copy shall be available for re-use at the end of the period of exclusivity.’;

(c)

paragraph 3 is replaced by the following:

‘3. Exclusive arrangements existing on 1 July 2005 that do not qualify for the exceptions under paragraph 2 shall be terminated at the end of the contract or in any event not later than 31 December 2008.’;

(d)

the following paragraph is added:

‘4. Without prejudice to paragraph 3, exclusive arrangements existing on 17 July 2013 that do not qualify for the exceptions under paragraphs 2 and 2a shall be terminated at the end of the contract or in any event not later than 18 July 2043.’.

(11)

Article 13 is replaced by the following:

‘Article 13 Review

1. The Commission shall carry out a review of the application of this Directive before 18 July 2018 and shall communicate the results of that review, together with any proposals for amendments to this Directive, to the European Parliament and the Council.

2. Member States shall submit a report every 3 years to the Commission on the availability of public sector information for re-use and the conditions under which it is made available and the redress practices. On the basis of that report, which shall be made public, Member States shall carry out a review of the implementation of Article 6, in particular as regards charging above marginal cost.

3. The review referred to in paragraph 1 shall in particular address the scope and impact of this Directive, including the extent of the increase in re-use of public sector documents, the effects of the principles applied to charging and the re-use of official texts of a legislative and administrative nature, the interaction between data protection rules and re-use possibilities, as well as further possibilities of improving the proper functioning of the internal market and the development of the European content industry.’.