The approach of the recent reform of Law 37/2007, on Reuse of Public Sector Information

On the occasion of the approval of Law 9/2017, of November 8, on Public Sector Contracts, Law 37/2007, of November 16, on Reuse of Public Sector Information has been reformed. Specifically, the thirteenth final provision has modified:

• Some precepts related to the scope of the obligated subjects.
• The margin of discretion that was granted to the Administrations and public sector authorities, to limit the scope of the reuse beyond the legally established assumptions.
• The legal regime corresponding to the rates for the supply of documents for reuse has been updated.

We will see each of them in detail:

Modifications that affect the obliged subjects

The reform has fundamentally sought to be aligned with the new regulation of the common administrative procedure established by article 2 of Law 39/2015, of October 1, of the Common Administrative Procedure and the same article of Law 40/2015, of October 1 of Legal Regime of the Public Sector. There is only one exception related to the first one: Public Law Corporations with private basis, such as professional associations, sports federations or chambers of commerce, have been excluded for those of their functions that have public character.

Specifically, regardless of the undoubted application of Law 37/2007 to the so-called territorial administrations - State, autonomous and local-, it also recognizes the subjection to the legal regulation of all entities with legal-public personification, surpassing, as a consequence, the exclusions and limitations that were foreseen in the previous version of this same precept. In this regard, it is no longer required that the public entity were created to satisfy general interest needs without an industrial or commercial nature. The mere public nature of the personification is enough to be fully subject to the provisions of Law 37/2007.

For this reason, even when the express reference to the consortiums, the management entities and the common services of the Social Security have disappeared, the truth is that these organizations are still subject to this regulation. There has been, therefore, an extension of the scope of application of this rule that now include all public entities, including public universities expressly.

In relation to entities endowed with a legal-private form, their submission to legislation on the reuse of information is conditional on exercising administrative powers, except for those provisions that may specifically refer to them.

Modifications that affect the scope of the reuse

Secondly, the reform has modified the regulation of Article 3.2 of Law 37/2007, which affects the scope of application of the reuse. According to the previous regulation, the legal obligation could be unilaterally excluded by the obliged subjects, allowing them to expressly limit their scope. With the new wording of this provision, this authorization disappears, so the possibilities of conditioning or excluding data reuse are now strictly limited to the cases contemplated in the law.

As a result, the discretion that until now was attributed to public sector administrations and organizations has been eliminated, although it is true that a guarantee was also established - an express declaration-. Therefore, it could be formally refuted through the corresponding administrative or judicial appeal.

Modifications that affect changes in rates

Finally, in the third place, article 7 of Law 37/2007 has been modified as regards the rate that can be applied for the supply of documents to reuse. Specifically, the reference to electronic official publications with a public sale price - that was contemplated at the end of paragraph 1 in section 1- has disappeared. This reference established the following requirement: they could charge at least "the same private price of the Administration established as sale price".

When this condition disappears, the general rule that establishes this precept will be applied: the rate will be limited, at most, to the marginal costs incurred for the reproduction, making available and diffusion, a quantity that could be lower than the sale price. In this way, the legal regulation is more faithfully adapted to the reform of the Directive that took place in 2013, according to which it is not possible to fix a rate higher than the aforementioned marginal cost.

Paragraph 6 of the aforementioned article 7 of Law 37/2007 has also been modified, so that the third paragraph has been repealed. This paragraph provided for the possibility that libraries (including university libraries), museums and archives could avoid to made public the criteria to establish rates before the request for reuse. As in the previous case, this is a modification that tries to better adjust to the requirements of European legislation after the 2013 reform, one of whose main objectives was to address a minimum harmonization of national standards and practices for the reuse of public cultural material in libraries, museums and archives, whose legal regime is intended to approximate to the established for the rest of the bodies in general terms, in view of the fact that their funds are a valuable raw material for their reuse in numerous products, in particular mobile applications.

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.