Source code and the PSI Directive

The PSI Directive encourages governments to make available for re-use as much public sector information as is reasonably possible. That way, data generated and collected by governments can be re-used by companies to feed and create digital content products and services, and facilitate learning and insight by citizens. The Directive provides a framework to stimulate the internal market and to do so without disturbing competition.

In this article we inquire into the relationship between software and the PSI Directive. After summarizing the Directive itself, we argue that software should not be treated differently from any other works with regard to the re-use of information and transparency of government.

We then continue by demonstrating the complementary relationship and interdependency between (open) data and software. The potential of government-produced data can only be converted to socio-economic value if the software that was used to generate, process, publish and visualise it in the first place is made available as well.

These two arguments fall completely within the objectives and rationale of the PSI Directive. Even though that is not the case with the re-use of government information within the public sector itself, similar economic arguments can be made for the sharing and re-use of government information between public agencies. The ISA programme facilitates the exchange of information by promoting the interoperability of government ICT systems and reducing vendor lock-in, commending the use of formal open standards just like the PSI Directive.

All in all, we build a strong case for software to be explicitly included in the national laws that are now being implemented by the member states.

The PSI Directive

Directive 2003/98/EC on the re-use of public sector information, also know as the PSI Directive, encourages European member states to make available for re-use as much public sector information as possible. Last year it was amended by Directive 2013/37/EU to cover developments in open government data and cultural heritage information. With regard to the latter, the Directive now also includes documents held by (university) libraries, museums and archives for which governments hold intellectual property rights.

The current Directive sets out a long list of considerations, which provide the rationale behind Europe-wide legislation for the re-use of public sector information. In summary:

1. Harmonisation of the rules and practices relating to the exploitation of public sector information contributes to the establishment of an internal market and fair competition.
2. The upcoming information and knowledge society provides every citizen with new ways to access and acquire knowledge.
3. Digital content production creates new jobs, particularly in small emerging companies.
4. The public sector collects, produces, reproduces and disseminates information in many areas of activity.
5. Public sector information is an important primary material for Community-wide digital content products and services. This information can be re-used by European companies to exploit its potential and to contribute to economic growth and job creation.
6. Historically, the Member States show considerable differences in the rules and practices relating to the exploitation of public sector information resources. Harmonisation — to the minimum extent necessary — should therefore be undertaken in cases where this differences hinder the smooth functioning of the internal market and the proper development of the information society in the Community.
7. Without minimum harmonisation at Community level, current and future legislative activities at national level might result in even more significant differences.
8. A general framework governing re-use of public sector documents is needed to ensure fair, proportionate and non-discriminatory conditions. Member States' policies can go beyond these minimum standards, allowing for more extensive re-use.
   Note: The PSI Directive defines the term 'document' in the broadest possible sense, basically meaning 'data' in general.
9. This Directive does not contain an obligation to allow re-use of documents; that decision remains with the Member State or public sector body concerned. It applies to documents that are made available for re-use when public sector bodies licence, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use also includes further use of documents within the organisation itself for activities outside the scope of its public tasks. Those activities typically include exclusive supply of documents on a commercial basis. The definition of 'document' is not intended to cover computer programs.
   The Directive does not apply when citizens or companies can only obtain a document if they can prove a particular interest.
   Nonetheless, public sector bodies are encouraged to make available any documents held by them, and to promote their re-use, in those cases where the body has the right to authorise their re-use.
10. Public undertakings are not covered here.
11. The term 'document' is defined in line with developments in the information society. It covers any representation and compilation of acts, facts or information — independent of the medium used — of which the public sector body has the right to authorise re-use.
12. The time limit for replying to requests for re-use should be reasonable and in line with requests for access. Reasonable time limits throughout the EU will stimulate the creation of new aggregated information products and services at pan-European level.
    Public sector bodies should make the documents for which re-use has been granted available in a timeframe that allows their full economic potential to be exploited. This is particularly important for dynamic content, e.g. traffic data. The timely availability of documents may be a part of the licence terms.
13. To facilitate re-use, documents should be made available in any pre-existing format or language, where possible and appropriate:
    • through electronic means,
    • in a format which is not dependent on the use of specific software, and
    • facilitating the re-use by and for people with disabilities.
    Public sector bodies should view requests for extracts from existing documents favourably when this would involve only a simple operation.
14. Where charges are made, the total income should not exceed the total costs of collecting, producing, reproducing and disseminating documents, and providing user support, together with a reasonable return on investment, that way precluding excessive prices. Of course, public sector bodies may apply lower prices or no charges at all. Member States should encourage public bodies to make documents available at charges that do not exceed the marginal costs for reproduction and dissemination.
15. All applicable conditions for the re-use of public sector documents should be publicly available and made clear to the potential re-users. To promote and facilitate re-use, Member States should encourage the creation of on-line indices of available documents. Applicants for re-use — particularly facilitating SMEs from other Member States — should be told how to seek redress for decisions or practices affecting them.
16. Making public all generally available documents held by the public sector at all institutional levels — concerning not only the political process but also the legal and administrative process — is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy.
17. Licences for the re-use of documents, for example dealing with liability, the proper use of documents, guaranteeing non-alteration and the acknowledgement of source, should be fair and transparent. Member States should provide for the availability of standard licences, preferably licences that are available online.
18. If the competent authority decides to no longer make available certain documents for re-use, or to cease updating these documents, it should make these decisions publicly known, at the earliest opportunity, via electronic means whenever possible.
19. Conditions for re-use should be non-discriminatory for comparable categories of re-use. For example, the exchange of information between public sector bodies for the exercise of public tasks might be free of charge, whilst other parties might be charged to re-use the same documents. Another example would be to have different charging policies for commercial and non-commercial re-use, respectively.
20. Public sector bodies should respect competition rules, avoiding as far as possible exclusive agreements with private partners, unless an exclusive right to re-use specific public sector documents is absolutely necessary to provide a service of general economic interest.
21. This Directive should be implemented and applied in full compliance with the Data Protection Directive, (Directive Directive 95/46/EC).
22. Copyright and related rights of third parties are not affected by this Directive, and it does not apply to documents covering industrial property rights, such as patents, registered designs and trademarks. The Directive does not affect intellectual property rights of public sector bodies, nor does it limit the exercise of these rights in any way beyond the boundaries set here. Obligations apply only insofar as they are compatible with international agreements on the protection of intellectual property rights, particularly the Berne Convention and the TRIPS Agreement. Public sector bodies should, however, exercise their copyright in a way that facilitates re-use.
23. To facilitate the cross-border use of public sector documents, Members States should ensure the availability of practical tools like online asset lists and portal sites to help re-users search for available documents — both central and decentral — and check the conditions that apply.
24. This Directive is without prejudice to the Copyright Directive (Directive 2001/29/EC) and the Database Directive (Directive 96/9/EC). It spells out the conditions within which public sector bodies can exercise their intellectual property rights when allowing re-use of documents.
25. This Directive should achieve minimum harmonisation, thereby avoiding further disparities between the Member States in dealing with the re-use of public sector documents. Where necessary, the Community may adopt measures to achieve these objectives:
    • to facilitate the creation of Community-wide information products and services based on public sector documents,
    • to enhance an effective cross-border use of public sector documents by private companies for added-value information products and services, and
    • to limit distortions of competition on the Community market.

Note that this summary is based on the recitals of the PSI Directive. Although they are formally not legally binding, the recitals state the purpose of the Directive and describe each of its main provisions. For sake of readability, we use the recitals whenever possible when discussing the provisions of the Directive.

Software and the PSI Directive

In this part of the article we work out the relationship between software and the PSI Directive, starting with the question of whether computer programs may be already included in the amended Directive, elaborating on its "where" and "how", and investigating the limitations of the current Directive with regard to software.

Software as a creative work

From a legal point of view, software — both in its original source code form and as an executable object — is a creative work, protected under the same copyright laws as literary and artistic works as initially agreed upon internationally in the Berne Convention. That agreement covers literary, scientific and artistic publications, performance works, musical compositions, audiovisual works, graphical and sculptural works, and architectural works.

The WIPO Copyright Treaty of 1996 adds explicit protections for computer programs, ensuring that they too are protected as literary works: Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression. (article 4 of the WCT)

In the European Union, the WCT copyright protection for software is implemented in the Computer Programs Directive (Directive 2009/24/EC).

Documents

Although the amended PSI Directive now explicitly includes artistic works held by (university) libraries, museums and archives, it does not use the word 'work' to describe the productions it covers. Instead, the legal regimen of the Directive is based on 'documents', that way including not only creative but also informational productions that are not protected by traditional copyright laws. Such is the case with databases that are now covered in the Database Directive (Directive 96/9/EC), together with the PSI Directive and the Copyright Directive (Directive 2001/29/EC) forming the full implementation of the WCT. When referring to works, content and data, the PSI Directive uses the neutral word 'information', including in its title.

Section 11 of the PSI Directive defines the term 'document' as follows: This Directive lays down a generic definition of the term 'document', in line with developments in the information society. It covers any representation of acts, facts or information — and any compilation of such acts, facts or information — whatever its medium (written on paper, or stored in electronic form or as a sound, visual or audiovisual recording), held by public sector bodies. And article 2.3.a states that 'document' means: (a) any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording); (b) any part of such content.

Software

There is absolutely no reason why source code would not be included in this definition. As a matter of fact, it fits all three descriptions: From an active point of view, it describes acts (an algorithm is a procedure for computing); it often contains data (facts); and it is information in itself (i.e. a process description). From a passive point of view — when stored in a file, a revision control system or a repository like OSOR — source code can definitely be regarded as content.

Even more, both the executable object and the user interface of the running program, though more appealing to its functional rather than its informational essence, can be seen as another 'representation' of the source code, just as they are in current copyright law. For example, the user interface of a program consists of screens built up from elements (widgets) defined and laid out in the source code, just like the workflow of the program.

This dual character — computer programs being active instructions as well as passive data — has been put to use in the stored-program computer architecture first described by the Hungarian-American mathematician and physicist John von Neumann.

Nowadays, the traditional notion of object code as binary executable appears to be obsolete anyway. For example, metaprogramming and code refactoring are techniques in which programs are written to transform other (source code) programs. Furthermore, there exist several intermediate representations of software that could be considered binary but require additional transformations to actually be executed, e.g. Java bytecode and Intel's VIP technology.

Glitch

Oddly enough, in section 9 of the PSI Directive an explicit exclusion of software has been made. The text states that the definition of 'document' is not intended to cover computer programs. This sentence was already part of the original 2003 version of the Directive, in the exact same wording and location, and the subject was never mentioned at all in last year's amendment.

De Vriendt cannot help us with the origins of this exception. I was not involved in the creation of this Directive, but the interesting thing is that the exception is only present in the considerations but not taken up in any of the articles. I'm not a lawyer hence I wonder what is the value of having this text in a consideration that is not even speaking about what documents are covered by the Directive. It looks as if changes have been made to the text as the result negotiations between stakeholders during the legal process and nobody has checked the consistency of the text thereafter.

Even more, making an exception for software would be completely against the starting point of this Directive: The main idea is that governments make available for re-use as much of their information as is reasonably possible, because they are a valuable resource to others outside the public sector.

Promote and encourage

Section 9 deals with the freedom of member states and public agencies to decide for themselves which documents they want to make available: This Directive does not contain an obligation to allow re-use of documents. The decision whether or not to authorise re-use will remain with the Member States or the public sector body concerned. This Directive should apply to documents that are made accessible for re-use when public sector bodies licence, sell, disseminate, exchange or give out information. The PSI Directive does not oblige public agencies to publish all of their documents. Its main purpose is to stimulate the internal market and to do so without disturbing competition.

Not publishing after a reasonable request, however, would not only go against the spirit of this Directive; it is also explicitly addressed further on in the same section: Public sector bodies should be encouraged to make available for re-use any documents held by them. Public sector bodies should promote and encourage re-use of documents, including official texts of a legislative and administrative nature in those cases where the public sector body has the right to authorise their re-use.

Proprietary software lobby

Although the exception mentioned above refers to the definition of 'document', it stands completely on its own and clashes with both the objectives of the PSI Directive and the main definition of 'document' in section 11 and article 2.3. Trying to interpret it in the context of section 9 only adds to the confusion.

The exclusion of software at this odd place in the Directive was most likely inserted to satisfy lobbyists from the proprietary software industry. People involved in the legislative process were generally not willing to contribute to this article, and some of them admitted that this was a sensitive topic — implicitly referring to the huge interests of proprietary software vendors.

National legislation

Taking all of this into consideration, De Vriendt emphasises that a Directive is not a law. The exact impact of this Directive will become clear after the member states have implemented it in their national legislation. Making an exception for software, however, would be contrary to the spirit of this Directive.

As far as we can see, software fits perfectly into the PSI Directive. We find no reason at all to make an exception, neither in the Directive itself nor in the rationale behind it. Since the text of the exception only says "intended" and since the 'document' definition given in article 2 does not mention any exception, we would recommend ignoring it in the national implementations. Section 8 of the PSI Directive explicitly allows member states to do this: Member States' policies can go beyond the minimum standards established in this Directive, thus allowing for more extensive re-use.

Re-use of software

De Vriendt provides several examples of how the publication of source code matches both the intent and the letter of the PSI Directive. OpenCemetery is an open source software package to manage cemeteries. It's part of the French openMairie project which provides a whole suite of municipal open source software packages. It is also available from the OSOR repository. OpenCemetery provides functionality to manage cemetery concessions, authorisations and maintenance. In Ghent, Belgium, for example, we have a private company operating a cemetery for cats and dogs which might very well use the same software. This specific package is already available under a free software licence, but if it had not been this private company could have asked the public agency to make it available for commercial re-use under national legislation implementing the PSI Directive.

Tax authorities provide another example. When I pay taxes, the amount is determined by law, and executed by the tax collector. The precise calculation of my taxes, however, is performed by a large and complex software program. For common cases I am able to verify whether its output is indeed as expected, but for more complicated situations that's virtually impossible. Furthermore, the outputs of the different computer programs used by the tax collector and by commercial advisers will diverge due to differences in interpretation and implementation of the law. Isn't that what collectors and advisers are discussing for hours and hours? Finally, these programs contain tax models, variations of which can be very valuable for advisers, consultants and researchers to explore.

Transparency

Source code in general can serve as an open knowledgebase for study, providing insight as well as inspiration. It can be used to teach people how government policies are implemented in processes and systems. As the Ossmeter project shows, analysis of the source code can provide important information on the quality of government software, to be used in benchmarking, trend analyses or comparison with other software packages. And relating to Intellectual Property Rights (IPR), source code can be used to research or prove prior art.

The primary argument here, however, is transparency, which as section 16 of the Directive states is a basic principle of democracy. Computer programs nowadays form the foundation of decision-making in public agencies. Often the whole process is automated and its results are sent to citizens without any human ever checking the output. This is not very different from the Straight-Through Processing (STP) concept used in the financial industry.

Other examples are the granting of licences and electronic voting, says De Vriendt. The latter, especially, provides a strong case. Citizens have no insight into what these systems are doing internally.

In such cases, the source code of the program provides the ultimate details on the interpretation and implementation of the law as it is applied, i.e. an exact process description.

Open source licensing

De Vriendt notes that transparency does not necessarily require that citizens should have the right to alter the information. Publication of the documents and perhaps allowing their redistribution would be sufficient for inspection of government processes. Linked Data, a Semantic Web concept that allows you to relate everything to everything using a URL-like universal addressing scheme, provides a way to access and link in all data available online. Although this idea has been discussed, it has not become part of this Directive.

Practical re-use, however, does require the option to alter the source code, the right to compile and deploy it, and to redistribute it. That necessitates publication under a free software licence like the EC's very own EUPL (European Union Public Licence). Specifically relating to copyrights, section 22 states: Public sector bodies should ... exercise their copyright in a way that facilitates re-use.

The obligation to use a standard licence is stated in section 17 of the Directive: Member States should provide for the availability of standard licences, preferably licences that are available online. That strongly suggests the use of a widely-used and broadly-understood standard open source licence like the ones approved by the Open Source Initiative (OSI), including the EUPL.

Section 3 of the amendment explicitly speaks of minimal or no legal, technical or financial constraints to encourage the wide availability and re-use of public sector information for private or commercial purposes. In order to place a minimum of constraints on the source code published under a free software licence, public agencies should use a so-called permissive open source licence, basically allowing re-users to mix open and closed source code in their products.

Main objectives

Re-use of government information by companies and transparency facilitating learning and insight by citizens as described above are the two main purposes of the PSI Directive. In doing so the Directive imposes preconditions to make sure its socio-economic objectives are pursued without disturbing the market. More specifically these objectives are:

• to facilitate the smooth functioning of the internal market;
• and the proper development of the information and knowledge society;
• to enable new ways of accessing and acquiring knowledge by citizens;
• to create new jobs, particularly in small emerging companies;
• and to stimulate European companies to exploit their potential and to contribute to economic growth.

As shown here, software fits both the definition of 'document' and the aims of the Directive. In the next sections we shall demonstrate that there are strong arguments beyond those already discussed, making a compelling case for the inclusion of software, to be published under an open source licence.

Software and open data

In the previous section we argued that software should be included in the national laws that are now being implemented by the member states. Re-use of information and transparency of government, being the main objectives of the PSI Directive, were the direct arguments used to make that case.

Open government data, introduced with the 2013 amendment to the PSI Directive, provides additional arguments for the publication of software code under an open source licence.

Open government data

According to the Open Definition, open data is data that can be freely used, re-used and redistributed by anyone — subject only, at most, to the requirement to attribute and share-alike. Typical examples are geographical data, climate and weather data, and information on traffic and accidents.

The inclusion of artistic works and open data were the most important extensions to the term 'document' in the 2013 amendment. With regard to the second of these, section 3 of the amendment states: Open data policies which encourage the wide availability and re-use of public sector information for private or commercial purposes, with minimal or no legal, technical or financial constraints, and which promote the circulation of information not only for economic operators but also for the public, can play an important role in kick-starting the development of new services based on novel ways to combine and make use of such information, stimulate economic growth and promote social engagement.

Over the past decade, most national governments and well as regional governments have created open data portals, more than a few of them using the open source data management system CKAN (Comprehensive Knowledge Archive Network). Its most renowned deployments include the British data.gov.uk and the US data.gov. Other portals providing open government data are the French Data Publica, the German GovData, and the Spanish datos.gob.es. The website datacatalogs.org lists almost 400 data catalogs, including 120 official EU data catalogues.

In December 2012, the EC opened its own Open Data Portal, which provides data held by EU institutions, agencies and other bodies. Currently, around 40 agencies have published over 6700 datasets. The Open Data Support community on Joinup provides technical support, training and consulting related to the publication of open data.

Formal open standards

Although the socio-economic value of government-produced data is recognised, the PSI Directive says nothing about the software required to put this data to use. It only states that data as well as its metadata (data about the data, covering both its format and its meaning, i.e. the data definition) should be made available in a formal open standard, making re-use independent of specific software.

Section 13 reads: The possibilities for re-use can be improved by limiting the need to digitise paper-based documents or to process digital files to make them mutually compatible. Therefore, public sector bodies should make documents available in any pre-existing format or language, through electronic means where possible and appropriate. Public sector bodies should view requests for extracts from existing documents favourably when to grant such a request would involve only a simple operation. Public sector bodies should not, however, be obliged to provide an extract from a document where this involves disproportionate effort. To facilitate re-use, public sector bodies should make their own documents available in a format which, as far as possible and appropriate, is not dependent on the use of specific software.

This is further formalised in article 5:

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.

The definitions related to formats and standards are given in 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.

What this boils downs to is that (meta)data should be published in a formal open standard, or exported to such a standard if that is not too much work.

Note that the PSI Directive says nothing about the use of open standards to store and exchange government information to begin with. That is part of the EC's ISA programme (Interoperability Solutions for European Public Administrations), which promotes the interoperability of government ICT systems and reducing vendor lock-in.

Lists of required and recommended open standards are often available from the national organisations responsible for implementing interoperability in the member states.

Software complementary to data

Making government data available for re-use in a formal open standard is one thing; actually putting it to use is another. We think that it is an omission to disregard the software (libraries) used to generate, process, publish and visualise the data. This chain of software tools provides the complementary functionality that actually enables the data, giving it life by turning it from passive collections of numbers and letters into (inter)active pieces of information.

Spreadsheets provide a good example of the difference in the value of data with and without the complementary software. Non-trivial spreadsheets contain cells with formulas (providing outputs) in addition to the cells that hold only passive data (inputs). "Flattening" a spreadsheet by replacing the original formulas with their calculated values removes its dynamic and functional characteristics, clearly decreasing its value. It is the formulas (software!) complementary to the passive data that make a spreadsheet into a useful and re-usable tool. Flattening it impairs its effectiveness and value.

Most public agencies will doubtless publish their spreadsheets without even thinking to flatten them, or even realising that the documents they are publishing contain not only data but also code. The same is true for text documents containing macros, web pages containing JavaScript to facilitate continuous interaction between user and service (using DHTML and AJAX), and web-based or PDF forms containing embedded input checking and processing. All these are examples of data and code inextricably combined in a single document.

Databases

A similar case can be made for databases: a raw dump of a complex relational database in an open standard format like CSV (Comma-Separated Values) — though conforming to the regulations of the Directive — can be next to worthless without the software to interrelate the data, and to process and visualise it. In this case, it is the libraries, the ODBC/JDBC abstraction layers and the SQL queries which make a database practically re-usable.

For example, relational database applications generally require base functionality including the listing, creation, reading, updating and deleting of records, a feature set often shortened to CRUD.

The key message here is the notion that it is the software directly related to and interacting with the data that makes the data accessible and useful. In other words: the very same software that makes the data usable in the first place also makes it re-usable.

Applications

The fact that software functions as the enabler for the (re-)use of data has clearly been recognised by the organisations making their data available online. The EC's Open Data Portal, for example, provides a separate section for the publication of visualisation applications. Both the US data.gov and the British data.gov.uk portals provide searchable lists containing hundreds of applications. The same is true for the German GovData and the Spanish datos.gob.es.

We think the PSI Directive should recognise this interdependence between data and software. The fact that public sector bodies cannot be required to continue the production and storage of a certain type of documents, as stated in article 5.3, provides an additional argument. Including the publication of the software used to open up the information — enabling, easing and enhancing its re-use — should not be too hard to do. It fits the objectives of the Directive naturally.

Sharing and re-use by governments

We started this article advocating that source code should be included in the term 'document'. There is no reason why software should be treated differently from other documents with regard to the re-use of information and transparency of government.

We then continued by demonstrating the complementary relationship and interdependency between data and software. The potential of government-produced data can only be converted into socio-economic value if the software that was used to generate, process, interrelate, publish and visualise it in the first place is made available as well.

These two arguments fall completely within the objectives and rationale of the PSI Directive. That's not the case with the re-use of government information by other public agencies, even though the economic arguments are similar.

Public to private

The re-use of information and transparency of government as promoted by the PSI Directive are not related to the functioning of the public sector itself. As sections 4 and 5 state, the Directive is all about the (re-)use by citizens and the private sector of information already collected, produced, reproduced and disseminated by public agencies as part of their mandates.

This is more explicitly stated in section 25: ... the objectives of the proposed action, namely to facilitate the creation of Community-wide information products and services based on public sector documents, to enhance an effective cross-border use of public sector documents by private companies for added-value information products and services and to limit distortions of competition on the Community market ....

Joint development

Similar economic arguments, however, can be made for the sharing and re-use of government information between public agencies. As a matter of fact, since they are all part of the same sector, they may very well benefit from each other's productions, specifically when it comes to software. This line of reasoning adheres more to the traditional arguments for open source.

The ISA programme, also including the Joinup platform, facilitates the exchange of information by promoting the interoperability of government ICT systems and reducing vendor lock-in, commending the use of formal open standards just like the PSI Directive.

For example, the OpenCemetery software that can be re-used by private companies can also be re-used by other public agencies responsible for the management of concessions. As a matter of fact, this open source software package is currently deployed at hundreds of public administrations.

Although open source fits the PSI Directive perfectly, the publication of software for re-use mostly is not an afterthought but an inherent part of its creation. Open source licences — though often used for the publication of software — are basically a legal vehicle for the open, joint development of software. Apart from the socio-economic benefits construed in the Directive, this allows public agencies to share costs, reduce risks, and share knowledge and experience. Furthermore, open source development allows bug fixes and functional extensions from private parties to be incorporated in public software deployments, stimulating co-operation and co-creation between governments, commercial companies and citizens.

National legislation

De Vriendt emphasises, however, that — whatever the strength of the arguments for sharing and re-use within the public sector — efficiency is not part of the EC mandate. There are no European laws that allow the Commission to initiate action in this area. That's why the PSI Directive most emphatically refers to the internal market. It in no way interferes with the freedom of the individual member states to decide what documents can or should be made available. The Directive only sets the preconditions, advising on licences, speed of processing and procedures, and such. In that sense, it is rather limited.

Section 9 states: This Directive does not contain an obligation to allow re-use of documents. The decision whether or not to authorise re-use will remain with the Member States or the public sector body concerned. This Directive should apply to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information.

National legislation does not have these limitations, De Vriendt continues. If tomorrow a national authority decides that all government-funded software in the country should be made available to the public, so be it. That's the freedom of the parliaments of the member states, no different from setting the speed limits or other national legislation.

As a matter of fact, the implementation of the PSI Directive provides an opportunity for the member states to explicitly add software publication for re-use to their legislation, under the same regime as other works. Subsequently, open source licensing (and development) are the most obvious way to go.

Conclusions and recommendations

• The PSI Directive encourages governments to make available as much public sector information as is reasonably possible for re-use by companies and to facilitate learning and insight by citizens;
• the Directive provides a framework to stimulate the internal market and to do so without disturbing competition.

• From a legal point of view, software — both in its original source code form and as an executable object — is a creative work, protected under the same copyright laws as literary and artistic works;
• software should not be treated differently from any other works with regard to the re-use of information and transparency of government;
• making an exception for software would be completely against the starting point of this Directive: the main idea is that governments make available for re-use as much of their information as is reasonably possible;
  the Directive is a framework as well as a recommendation: public sector bodies should promote and encourage re-use of documents;
• we recommend ignoring the odd exception made for software when defining the national implementations: it makes no sense, contradicting both the letter and the intent of the Directive, and the member states have the freedom to do so;
• practical re-use of software necessitates the publication under a (liberal) standard open source licence.

• Over the past decade, most national governments and many regional governments have created open data portals;
  together with artistic works the inclusion of open data was the most important extension of the 2013 amendment to the term 'document';
• we think that it's an omission to disregard the software (libraries) that were used to generate, process, interrelate, publish and visualise the data in the first place — i.e. the toolchain;
• software provides the complementary functionality that actually enables the data, making it practically accessible and useful;
  complex data can be next to worthless without its complementary toolchain;
• the potential of government-produced data can only be converted to socio-economic value if the software to put this data to use is made available as well;
• it's the very same software that makes data usable that makes it re-usable!
• organisations making data available online have recognised this fact; most open data portals provide searchable lists containing hundreds of applications;
• including the publication of the software used to open up the information — enabling, easing and enhancing its re-use — fits the objectives of the Directive naturally.

• The PSI Directive says nothing about the use of open standards to store and exchange government information to begin with; that is part of the EC's ISA programme, promoting the interoperability of government ICT systems and reducing vendor lock-in;
  the Directive is all about the re-use of information and transparency of government by the private sector and citizens;
• similar economic arguments, however, can be made for the sharing and re-use of government information between public agencies;
  as a matter of fact, since they are all part of the same sector, they may very well benefit from each other's productions, specifically when it comes to software;
• open source licences — though often used for the publication of software — are basically a legal vehicle for the open, joint development of software;
  apart from the socio-economic benefits construed in the Directive, this allows public agencies to share costs, to reduce risks, and to share knowledge and experience;
  furthermore, open source development allows bug fixes and functional extensions from private parties to be incorporated in public software deployments, stimulating co-operation and co-creation between governments, commercial companies and citizens;
• the implementation of the PSI Directive provides an opportunity for the member states to explicitly add software publication for re-use to their legislation, under the same regime as other works;
  open source licensing (and development) is the most obvious way to go.

• We recommend taking these findings into account when the PSI Directive is up for review again in 2017/2018, as specified in article 13.