The reuse and use conditions of licenses

In the regulation of the right of access to public sector information, making a request is essential to obtain the data. This request gives rise to the corresponding administrative procedure, so that the user could obtain the information only after the appropriate resolution. Likewise, the legislation on transparency has also established important obligations of active publicity, that is, cases in which the information must be made available electronically without the need for an application to be submitted.

Consequently, in these cases it is possible to affirm the existence of an authentic right of citizens to obtain the information, unless there is another legal good that must prevail. However, it should be taken into account that access does not imply, just like that, the right to use the information obtained for any purpose and in any case. As an example, there may be restrictions from the perspective of the protection of personal data, in particular as regards the use of them for purposes incompatible with those that initially justified their dissemination, an illegal cases under the application of the article 5 of the General Data Protection Regulation.

However, this approach is not applicable, in theory, in the area of the ​​reuse of public sector information. In fact, despite the progress made in 2013, the truth is that there is no real legally established right in this area and, on the other hand, each public entity can decide under what conditions it is possible to proceed with the reuse of the information. Specifically, notwithstanding that the general requirements of article 8 of Law 37/2007 are also applicable, they may resort to one of the following options:

• Facilitate reuse without establishing additional conditions.
• Demand the submission of an application that, therefore, will lead to a formalized procedure that will end with the corresponding resolution.
• Proceed with the subscription of an exclusive agreement, although it is a possibility that is subject to significant restrictions.
• Opt for an early predetermination of the reuse conditions, in which case the public entity will proceed to publish a license electronically. This may have the status of a type license, so that it allows any subject and for any purpose to access the data, use it, modify it and share it for free.

Thus, licenses are an instrument of high importance to facilitate the reuse of public sector information. In fact, the 2019 new Directive is firmly committed to standard licenses and requires that the established conditions are “objective, proportionate, non-discriminatory and justified by a public interest objective”; so that in theory it would only be possible to contemplate restrictions for justified reasons and always that they do not mean a restriction of competition. In the case of Spanish regulation, the imposition of conditions that limit reuse is also exceptionally contemplated, so that the restrictions must be the minimum possible and in no case can they be discriminatory for comparable categories of reuse.

Although there is a wide typological diversity in terms of licenses and numerous initiatives in the international arena, the European Union offers a very useful assistant when choosing one modality or another. In any case, when any public entity in Spain opts for one of them, it must take into account some essential legal requirements. In general, it is necessary to opt for open licenses, that is to say, that contain the minimum restrictions, although there is a minimum content for licenses that cannot be ignored, since it must include:

• the specific purpose for which reuse is permitted, indicating where appropriate if commercial activities are allowed.
• the duration of the license
• the obligations assumed by both the beneficiary and the publisher agency
• usage responsibilities
• as well as if reuse is free or, where appropriate, the applicable rate.

Certainly, it is not possible to put open licenses and public licenses on the same level because, as noted, the imposition of certain restrictions -that prevent public licenses from being considered open in any case- may be justified. Even, it is necessary to admit the existence of diverse criteria in each entity for opening the same data set, which means an additional problem at the time of extending the services of added value that the reused agent can offer. In that case, the reuser would be forced to adapt to different legal environments.

Consequently, it is essential to promote effective policies at European level that contemplate interoperability not only from the technical and organizational perspectives but also from the point of view of legal requirements. For this, the licenses singularities in the field of public sector information must be taken into account. At the same time, in line with the recent European regulation, the open licensing model must be promoted as a priority in order to overcome the existing legal difficulties that can ultimately hinder digital transformation initiatives based on the Big Data and artificial intelligence. And, in this regard, although the conditions of use are usually established through a text legend on the entity website, the truth is that the current scenario of automated interconnections between devices and applications requires a more dynamic model that, beyond the aforementioned interoperability premises, also take into account the need for reuse conditions - and therefore licenses - to be accessible in legible formats in an automated manner.

Thus, it is a process that will have to work during the next few years, especially on the occasion of regulatory adaptation to European reform.

Content prepared by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

Contents and points of view expressed in this publication are the exclusive responsibility of its author.