Edit Policy: The Open Data Directive and the German blockades


When it comes to digitization issues, Germany is seldom seen as a pioneer – whether it’s about free WiFi, administrative digitization, broadband expansion or digital education, far too often German politics lacks foresight. The federal government often first has to be forced to innovate through EU guidelines.

This is also the case with the Open Data Directive, which Germany must implement into national law by July 17, 2021. If an agreement is not reached soon, Germany will fail on this deadline. The Bundestag only meets twice in this legislative period; the proposed law is on the agenda for next Thursday. But even if the Bundestag approves the government draft, Germany fails to see open data as an opportunity.

The EU’s Open Data Directive generally obliges member states to release documents from the public sector for further use – in some core areas even in real time and machine-readable. As a political compromise, the set of rules nevertheless contains a large number of exceptions and restrictions. The federal government intends to make extensive use of these. A draft law for the federal government has been in place since February Open Data Act and Data Usage Act in front. However, this was apparently too unambitious even for the coalition factions in the Bundestag, as it just implements the European minimum requirements for open administrative data.


Diana Levine, CC-BY


In the Edit Policy column, former MEP Julia Reda comments on developments in European and global digital policy. She wants to show that European and global network policy developments can be changed and encourage political engagement.

Instead of recognizing the social added value that digital civil society, companies, science and journalists can create if they can freely reuse public data and combine it for new purposes, German ministries and companies in public hands are apparently still driven by fear: fear from loss of control, from competitive disadvantages and from a critical public. There is hardly any other explanation why the federal government’s draft law lacks an enforceable right to open data.

Although authorities are obliged to release information according to the Freedom of Information Act, the central requirements for machine readability for open data are missing there. If you are working on an innovative app and want to include public data, you will not be very enthusiastic after waiting weeks for the answer to a request for freedom of information to be sent to a printed Excel sheet.

An important hurdle that has to be overcome on the way to an open administration, in addition to the technical processing and provision of data, is its legal status: Unfortunately, even with information collected by the state, it is not the normal case that it can be legally used. In addition to copyright, when it comes to protectable works such as texts or photographs, database law also stands in the way – a purely European invention, in which even data not protected by copyright can be provided with exclusive rights if they come from a database in the creation of which a company has invested. The EU Commission hoped that this special right would give the European data economy a boost when it was introduced. This never happened the commission had to admit meekly when evaluating the rules, but once an exclusive right has been created, it is so difficult to abolish that it continues to exist today – with no apparent benefit.

It is particularly perfidious, however, when the state invokes an exclusive right that should serve to support creativity and innovation in the free economy. But that is exactly what happens again and again – both in terms of copyright and database law. Numerous cases are known under the catchphrase censorship law in which ministries and public offices take action against private individuals, civil society and the media who disseminate information produced by the public sector and use it for new purposes.

Only recently it became known that the Bavarian State Office for Digitization, Broadband and Surveying (LDBV) is trying to prevent the use of geodata by open data activists – citing copyright and database law. As a result, the authority hampers the creation of online offers that ultimately benefit the general public. According to the current legal situation, it is far from obvious whether the geodata in question is protected at all.

In the future, thanks to the Data Usage Act, public bodies will at least no longer be able to invoke the protective right for databases in order to prevent the further use of public data sets. The Open Data Directive expressly forbids this abuse of exclusive economic rights by the state. Unfortunately, there is no corresponding regulation for copyright law, which German courts interpret extremely broadly. Copyright protection was even assumed in a rent index, although this has very little to do with creative work.

Official works are in the public domain under German copyright law, including legal texts, for example. However, the underlying definition of official works is so narrow that there is considerable legal uncertainty even with parliamentary resolutions or state studies. Although there are also progressive court decisions, the Cologne Higher Regional Court recently decided that the Publication of a glyphosate report by the FragdenStaat initiative was lawful. But the Federal Institute for Risk Assessment could appeal against this ruling, activist: So inside are in constant legal uncertainty.

It would be easy for the Bundestag to solve the problem once and for all as part of the implementation of the Open Data Directive. All that is needed is a clarification in the copyright law that all content that has been created in the area of ​​responsibility of the public sector is generally in the public domain. The US already has such a regulation. Therefore, open projects like Wikipedia can enjoy numerous images from NASA space missions and other important historical events. The federal government is only harming itself if it excludes such possibilities for the holdings of German authorities.

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