We know that the access to information is a fundamental right, guaranteed by the Charter of Fundamental Rights of the European Union. We also know that the right to re-use the information coming from public sector bodies has been dealt by the PSI Directive and that in most member states there is a clear separation between the access legal system and the re-use legal system.

However now, with the incoming new PSI Directive renamed as “Open Data and Public Sector Information Directive” does it make sense to keep a clear distinction between the two rights?

The universally accepted definition of Open Data provided by the Open Definition, sounds:

Open means anyone can freely access, use, modify, and share for any purpose (subject, at most, to requirements that preserve provenance and openness).”

As you may notice, in the definition the concepts of access and re-use are merged. Instead, in the legal framework of several member states and also in the current PSI Directive there is a relationship of propaedeuticity between the two rights. In other words you cannot re-use information if you do not have access to it.

However, why not consider the right of re-use as embedded into the right of access? Accepting this, there would be a number of benefits, one of them is the fact that the right of re-use would acquire the status of fundamental right.

The right of access in the constitutions of the member states

A constitution contains the basic principles and rules of a country. It specifies how a country should be governed and what rights citizens have. 

Having the access right in the constitution is important for the its recognition as a fundamental human right. In this regard, it is interesting to find out in which member states it is included in the constitution.

The table below summarizes the results of an analysis on the constitutional provisions laid down by the member states. The large majority of the countries has the access right included into the constitution.

 Conclusion

A merging of the rights of access and re-use of information following the “Open Data” definition could guarantee the acceptance of the re-use right as a fundamental right. By the way, this is what the new name of the PSI Directive seems to suggest.