The Directive on the re-use of public sector information (Directive 2003/98/EC, revised in 2013 by Directive 2013/37/EU – ‘PSI Directive’) establishes a common legal framework for a European market for government-held data (public sector information). It is built around two key pillars of the internal market: transparency and fair competition.

The PSI Directive focuses on economic aspects of re-use of information gathered by governments, and while it does mention some societal impact of such re-use, its main focus is on contributing to a cross-borer European data economy by making re-usable data held by governments accessible both for commercial and non-commercial purposes (i.e. “open data”). The objective of PSI Directive is not to establish truly “open government” as such, although it does contribute to such goal by demanding the re-usability of government-held data based on open and machine-readable formats.

For Free Software the PSI Directive is important because it affects re-use of documents as in texts, databases, audio files and film fragments, but explicitly excludes “computer programmes” from its scope for no apparent reason in the recital 9 of Directive 2003/98/EC.

However, despite this explicit exclusion of software in the PSI Directive recital, EU member states are not precluded from creating their own rules for opening up data held by public bodies and including “software” into the list of re-usable government-held information. First, the PSI Directive establishes “minimum” requirements for member states to follow when opening up their data, and second, the exclusion of computer programmes from the scope of the Directive is enshrined in its non-legislative part: recitals, acting solely as a guidance to the interpretation of the legislative part: the articles.

The recent case in France is a good example why there are no evident reason why the EU member states should exclude software from the list or re-usable and open data held by governments. In particular, France’s “Digital Republic” law, adopted in 2016, (LOI n° 2016-1321 du 7 octobre 2016 pour une République numérique) considers source code as a possible administrative document that must be made available in an open standard format that can be easily reused and processed.

Therefore, our response to the PSI Directive public consultation can be summarised to:

• Consider source code owned by a public administration as a ‘document’ within the scope of the Directive.
• Algorithmic accountability in government decision-making process is a must for truly transparent government, therefore, the software developed for public sector that is used in delivering tasks of public interest either by a publicly owned company or a private company, should be made available as Free Software.
• Free Software is crucial for scientific verification of research results, and it is absolutely necessary to make sure that Open Science policies include the requirement to publish software tools and applications produced during publicly funded research under Free Software licences.
• No special agreements with private services for delivering tasks of public interest shall ever preclude the re-usability of government-held data by both commercial and non-commercial Free Software. Public bodies shall focus on making data available in open and accessible formats.
• Sui generis database rights cannot be invoked in order to preclude the re-usability of government-held data.
• Minimum level of harmonisation for the relationship between Freedom of Information (FoI) laws and the PSI Directive is needed in order to bring the EU closer to the cross-border market for public sector information.

Please find our submission to the public consultation in full here.

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