Access To Public Information:
A Key To Commercial Growth And Electronic Democracy

Conference - Stockholm
27/28 June 1996

Flags of 15 EU Member States

Opportunities and constraints of public data commercialisation: 
A private company viewpoint

David R Worlock

President of the Council - European Information Industry Association

Proceedings ] [ Appendix 1 ] [ Appendix 2 ]

It is ten years since the United Kingdom government, the first in Europe to do so, produced a set of guidelines on government tradeable information which sought to redefine some of the relationships between government as an information source, the information marketplace and its actors, and commercial entities who would be users of value-added services based on information flow derived ultimately from government. In that time, both government and the private sector have undoubtedly learnt a good deal about cultural diversity and the difficulties of altering fixed viewpoints. In my own country, many in the information marketplace ruefully reflect that the expression “Open Government” is usually deployed by someone about to propose a new set of rules for the regulation of access to information, and that privatization of information-holding government entities does not mean the release of information so much as the possibility of the creation of new private-sector information monopolies. This is not to say that much that has gone on in the last ten years has not been progressive -- nevertheless, the fact of the Green Paper and the debate surrounding it indicate that real progress can still be made. In order to ensure that progress at the European level does not reintroduce circular arguments that we have already experienced before, it is necessary to revisit some of the underlying principles and see how they play out in commercial practice.

Pioneers of these arguments in Europe ten years ago did not think that they were making any revolutionary suggestion. Indeed, quite the opposite, for they believed that if the strategic goal was to create a free trade area in Europe with greater transparency and lower barriers, in order to promote and increase trade and therefore wealth and employment on a regional and transnational basis, then the removal of barriers to trade caused by inadequate, insufficient or unreliable information was of prime importance. Since government, though not the only source, is the greatest single source of information used in the trading process, then it seemed natural to seek common conditions of access to government information in the various states of the European Union in order to create conditions sympathetic to the development of pan-European databases. Insofar as the Guidelines on the Synergy of Public and Private Sectors in the Information Marketplace were an attempt to do this, they are commonly reckoned to have failed. Ten years have gone by, and the difficulties for private-sector information companies in creating integrated pan-European information resources remain as great as they ever were in the mid-1980s.

Another perception affected the thinking of the early advocates for common ground rules for commercial rights of access to information in Europe. This was the idea that the ability of private-sector companies in the United States to license government-held primary source information at low or non-existent levels of cost recovery was a key factor in the stimulation of the growth in that industry. This remains an unproven hypothesis, but it is certainly true that major players in the industry, from Dialog, which owes its origins to Lockheed’s defence and aerospace contracting businesses and the information output that they created, to Disclosure, founded on the back of access to SEC information, were seen as demonstrating the argument. In truth, the relationship between public and private sector in the United States is as complex, and at times as difficult, as any European example. Many would now argue, in any case, that the analogy is by now irrelevant. The key point is that if access to information could be used in Europe to stimulate the growth of the domestic information industry, then this would provide a rare opportunity to achieve such stimulation by deregulation, and without fear of market distortion arising from direct subsidy or support programmes. And, we concluded in 1986, the growth and development of the information industry in Europe was of importance not simply in its own right and in terms of its own capacity for wealth creation and employment, but in terms of the effects of better and more widely used information services upon the reduction of risk and the increase of opportunity in the trading process itself.

It is necessary to give this outline in order to demonstrate that the arguments initially deployed had nothing to do with making government more open to protect the citizen, or with any idea of rights or principles of law. The arguments were commercial and economic and they related to developmental opportunities which were as clearly in front of EU citizens then as they are now. And since some of the opposing interests have at times expressed the view that this simply reflects the avaricious desires of private-sector information service developers who wish to corner public-sector information and re-sell it at a profit to tax-payers who funded its collection in the first place, it is worth looking at some of the areas of opportunity that are created if access to government information without barriers is allowed:

These market development pointers indicate that much of the vision of ten years ago remains intact in the information marketplace, although some players have found their inability to carry the arguments convincingly to governments in member states very daunting. It is not simply, of course, that the rules are different in each member state. In several states, most notably in the UK and Ireland, the whole basis of law is different, and the UK’s retention of Crown Copyright, even though it is on the point of privatising the agency through which Crown Copyright was administered, perpetuates the gulf between regulatory regimes. And, even where Crown Copyright is not the prime issue, the UK provides some classic case studies of the information retentiveness which is a feature in all member states. In regard to the release of the Register of VAT-paying companies, HM Customs & Excise has, over a ten-year period, deployed the whole range of possible reasons for obfuscation or delay. When initial claims that the Register was Crown Copyright were rebutted, the Department took refuge in the idea that the information was confidential. When the industry indicated that it did not seek any confidential data, but simply the complete listing of the names and address of companies who currently pay the tax, shorn of details of their registration numbers and the amount of tax that they pay, the Department responded that this data was part of an implied contract between the tax-paying company and the tax collector, and to divulge it would be breach of that contract. When this argument was demolished, the Department sought refuge in the idea that the data was covered by the UK’s Official Secrets legislation and, indeed, indicated on one occasion that the legal opinion that this was so was itself covered by such legislation. Finally, last year, the Department was cornered and forced to relent, and initiated a public consultation on the issue. In April this year, this consultation at length came to an end, and the Department wrote to participants indicating that “The core of support for (public access to the VAT register) came from the finance, credit and information sectors who felt that such access would benefit businesses, particularly those providing business information, assessing creditworthiness, or underwriting potential business risk...”. Particular issues of concern (there were only 100 responses to this exercise) were privacy and security and “the additional risk of exposure to unsolicited junk mail or nuisance phone calls”. On these latter grounds it has been decided to maintain the secrecy of the VAT register.

It is one of the beguiling ironies of this UK example that a country which has no central business register, no mandatory registration of trading entities who do not seek limited company status, and therefore no ability to say how many small- and medium-sized enterprises it actually has, feels unable to release to the information industry data which would improve the accuracy and effectiveness of business databases throughout its economy. And this on the grounds of privacy, security and avoidance of junk mail in a country with a thriving direct marketing business, excellent business telephone directories and Yellow Pages, and data protection legislation which does not extend to corporate entities. As elsewhere in the Community, it sometimes seems to the information industry as if any argument is good enough to block access to information which can only improve the economic life of the Community as a whole.

What does the information industry feel should be done about this? In an Appendix to this paper, we have attached the 19 provisions agreed by information industry members in a series of meetings upon this issue prior to the publication of the Green Paper. In terms of practical action, we note a wider trend throughout the Community and, indeed, throughout the developed world, to place an increasing amount of public documentation for public access on the Internet. We have even noted instances where governments have made information available on the Internet for free public access while seeking to maintain licensing arrangements with private-sector information services for utilisation of the information in third-party databases. This is plainly absurd. Once unencrypted information is placed upon the Internet by government without recourse to entry control procedures or overt access conditions, then to all intents and purposes this has been placed in the public domain and governments who seek to impose licensing conditions on commercial users subsequent to releasing information in this way will simply encourage evasion while making themselves ridiculous. If, however, the placing of government-derived information on the Internet is done without strings, then the information industry will welcome it. Plainly, no citizen will buy from a commercial operator what he can obtain free from the government: if commercial operators therefore create information services based upon information acquired with public domain status on the Internet, then they do so in order to create additional values which will be recognised by users and paid for by them.

Because of its key positioning as the most developed information marketplace in Europe, and the residual home of an extreme regulatory regime like Crown Copyright, the UK once again provides the classic example. Increasingly, it is the case in that country that the proceedings of Parliament, and enactments made by Parliament, are being made available without charge on the Internet.

In a second appendix to this document is a submission made by the General Council of the Bar, the representative body of barristers in the United Kingdom, on these issues. Plainly, their view that barristers should have the ability to freely download legislative instruments from the Internet and incorporate them in their own information systems is very difficult to challenge. From the viewpoint of the commercial information industry, this is a wholly acceptable procedure. On the one hand it is unlikely to affect the market for value-added products, whether or not another copy of the same enactment is available to the user when he accesses an online database or other service and uses the commercially-available values there. On the other hand it cannot be in the interests of the practice of law in any country to frustrate access by lawyers to the legal instruments upon which the law is grounded. Yet such as been the practice and arguments in the UK over many years, and in a subtly different way, in other subject areas than the law, this has been the way in which information distribution from government resources has been widely practised in Europe.

The case study provided by the UK barristers is instructive because it is so clear-cut, but it must be remembered that most of the information industry is operating in areas where the government regulation of information is imprecise, delay and dissimulation often replaces regulation as a barrier to access and that, where this is the case, licensing to commercial entities in member states other than their own becomes virtually impossible. It is ironical, then, that the mechanism most likely to break this ten-year log jam is the Internet. The enthusiasm of politicians for what they are now alone in referring to as the information superhighway has led to the placement of considerable bodies of government data onto Web sites with, reportedly, much more to come. As we have indicated above, doing this in an open way and still seeking to maintain a regulatory regime, poses a major contradiction. And it is clear that once citizens, businesses and value-adding information companies get access to information feeds in this way, they are participating in liberties that they will be loath to give up at any future point. And, of course, they are doing so in a licence-free environment. All previous regimes proposed over the last ten years have sought to create, even for primary source data, some form of licensing environment which allows governments to retain a measure of control over re-use. Since this is plainly impossible to enforce in the Internet environment, it is clear that this may be abandoned as well. There will be risks, and the authentication of government-derived documents to ensure their completeness and accuracy will become an information industry issue of the future. But many now suspect that the Internet may well prove the way in which the stubborn resistances that we referred to at the beginning of this paper are in practice to be overcome. In that environment, the Green Paper will be doubly welcome if it has the effect of helping member state governments to recognise what has happened, and to realign and harmonise their information provision policies with those realities in the networked world of the late 1990s.

Proceedings ] [ Appendix 1 ] [ Appendix 2 ]

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