Policy guidelines for the development and promotion of governmental public domain information



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I.3. Public sector information


Governmental public domain information is part of a broader category of “public sector information”. Public authorities at the intergovernmental, national, provincial and local government levels produce vast amounts of information. For example, there are policy documents written by government departments, national archives and records, national registers (e.g. electoral roles, land transfer records, housing and land valuations, automobile registrations and business registrations). There are the minutes and records of meetings, ordinances and laws, judicial decisions, myriad scientific databases, statistical compilations, cultural surveys, results of many kinds of research projects, official reports, and innumerable other data and information products produced by government entities for public purposes.
In these Guidelines “public sector information” is defined as any information that is produced by a public sector entity.
The terms used in this definition can be defined as follows:
(i) A public sector entity is a national, sub-national or local level government body, or in certain cases an international organization. The national government should certainly take the lead in organising access and dissemination of public information at the national level, but the role and importance of information produced by sub-national or local public authorities must not be underestimated, since it represents a large part of public sector information in every nation.
The notion of public sector differs from one country to another, deeply influenced by culture and history and, can for example, be considered to be composed of:

  • Organizations charged by law with State authority or public service functions (functional definition);

  • Organizations that are specifically stated to be part of the public sector in a specific law (institutional definition); or

  • All bodies substantially financed with public funds (financial definition)9.


Existing Freedom of Information (FOI) Laws,10 can be of help in understanding the vision of many Member States regarding their definition of the public sector. Although the definition of public sector must be left to each Member State, a broad definition, for example, encompassing all three of the above definitions, would tend to enlarge the domain of available public sector information for the public good.
(ii) Public sector information must be produced by, or under the direction of, public authorities. The notion of production certainly includes active participation in the creation of data and information. It may also refer to the collection of information or to the funding of information and data creation under specific contractual arrangements. Some public authorities may produce public sector information by outsourcing to private companies.11 A broad definition of production similarly would tend to enlarge the amount of public sector information and of governmental public domain information.
(iii) The definition of information itself also should be considered in determining what type of public-sector information should be accessible for the public good. “Information” should not in any case be limited to just “news” or “facts”. The present Policy Guidelines adopt a definition of information proposed by the European Commission: “any content whatever its medium (written on paper, or stored in electronic form, or as a sound, visual, or audiovisual recording)”12. Several criteria can be used to categorize public sector information:


  • Information produced by the public sector can be categorized as administrative information or non-administrative information. Administrative information includes administrative procedures, or explanations made by a public entity concerning its procedures, or other information related to governmental functions. Non-administrative information refers to information related to the “external world”, and gathered or generated by public entities when performing their public functions (e.g. commercial, cultural, technical, medical, scientific, environmental, statistical, geographical, or touristic information).




  • Public sector information also can be categorized according to its potential interest and audience: Does it interest the general public, or does it exclusively interest a few people or groups of people? In particular, some “official information” is necessary for all citizens to exercise their democratic rights, e.g. laws and regulations, or judicial decisions.




  • Finally, public sector information may have an economic value for a specific market. Public bodies may produce information which is subsequently used or developed by the private sector which adds value, or public sector information can be further developed by the public sector directly, or through public-private partnerships.


The relationships among different types of public sector and private information can be summarized in the following table:





PUBLIC SECTOR INFORMATION

PRIVATE INFORMATION

PUBLIC DOMAIN INFORMATION

Governmental public
domain information

Information produced and voluntarily made available without protection by governments or international organizations. As a general principle, information produced by the public sector may be presumed to be part of the governmental public domain, unless expressly protected.

Unprotected information of private origin
Public domain information which is not in the governmental public domain. This includes information which is no longer protected, is unprotectable, or is expressly placed in the public domain by private rights holders.


PROTECTED

INFORMATION

Protected governmental information
Public sector information protected by intellectual property or by other measures, such as laws protecting national security or personal privacy.

Protected private information
Information owned by private parties which is protected by intellectual property, by laws such as those protecting personal property or confidentiality (e.g. trade secret), or by contract.



As stated above, governmental public domain information is that part of public sector information that is publicly accessible and whose use does not infringe any national security restrictions, nor any legal right, nor any obligation of confidentiality. The decision on which types of public sector information are placed in the public domain is very much dependent on each country's approach to governance and information policies, as well as on its information dissemination capacity and practices (particularly concerning the Internet).13
In some jurisdictions, for instance, works created by public authorities which fulfil the usual conditions of originality and fixation are covered by copyright14, while in others, such works are in the government public domain by statutory provision15. Many countries have for example chosen to deny copyright protection to official texts of a legislative, administrative and legal nature, and to official translations of such texts, which is permitted by international law. In practice, this choice generally derives from legal tradition.
These Policy Guidelines recommend that information produced by public entities in all branches and at all levels be presumed to be in the public domain, unless another policy option (e.g. a legal right such as an IP right or personal privacy) is adopted and clearly documented,16 preventing it from being freely accessible to all. However, government copyright and other forms of IP protection do not prevent a government from making its protected works openly accessible and usable by citizens, and thus may be functionally similar to governmental public domain information. Therefore, while Part II of these Policy Guidelines formally addresses governmental information in the public domain, the key elements related to governmental information policy could also be applied in an environment of public sector information protected by IP laws. Part III concludes by addressing the issue of access to and use of governmental information that is protected by IP laws.


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