ACT No. XXIX of 2015 AN ACT to provide for the re-use of public sector information and for matters ancillary or consequential thereto.

I assent.

M ARIE L OUISE

(L.S.)

C OLEIRO P RECA

President

13th October, 2015

ACT No. XXIX of 2015

AN ACT to provide for the re-use of public sector information

and for matters ancillary or consequential thereto.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows:-

(1) The short title of this Act is the Re-Use of Public

Sector Information Act, 2015.

(2) The purpose of this Act is the implementation of the

provisions of Directive 2003/98/EC of the European Parliament and

the Council of the 17th November 2003 on the re-use of public sector

information and the provisions of Directive 2013/37/EU of the

European Parliament and of the Council of 26 June 2013 amending

Directive 2003/98/EC on the re-use of public sector information.

In this Act, unless the context otherwise requires

"document" covers any content whatever its medium (written on

paper or stored in electronic form or as a sound, visual or audiovisual

recording), including any part of such content;

"formal open standard" means a standard which has been laid

down in written form, detailing specifications for the requirements on

how to ensure software interoperability;

"machine-readable format" means a file format structured so

that software applications can easily identify, recognize and extract

specific data, including individual statements of fact, and their

internal structure;

"open format" means a file format that is platform-independent

and made available to the public without any restriction that impedes

the re-use of documents;

"personal data" shall have the same meaning assigned to it by

article 2(1) of the Data Protection Act;

"public administration" shall have the same meaning assigned to

it by article 2(1) of the Public Administration Act;

"public sector body" means the public administration, Local

Councils, and public sector entities;

"public sector entity" means a body

(a)

established for the specific purpose of meeting

needs in the general interest not having an industrial or

commercial character; and

(b)

having legal personality; and

(c)

financed for the most part by the public

administration or by Local Councils or by other public sector

entities or subject to the management supervision by the public

administration, by Local Councils or by other public sector

entities, or having an administrative, managerial or supervisory

board, more than half of whose members are appointed by the

public administration, by Local Councils or by other public

sector entities;

"re-use of documents" means the use by a person or legal entity

of a document held by a public sector body for commercial or non-

commercial purposes, other than the initial purpose within that public

sector body’s public task for which the document was produced

Provided that re-use of documents shall not include

(a)

the transfer for use of a document within a public

sector body for the purpose of carrying out its own public task;

or

(b) the transfer for use of a document from one public

sector body to another for the purpose of either public sector

body carrying out its public task;

"university" means any publicly funded entity that provides

post-secondary-school higher education leading to academic degrees.

The following documents are specifically excluded from

the provisions of this Act

(a)

documents the supply of which is an activity falling

outside the scope of the public task of the public sector bodies

concerned, provided that the scope of the public tasks is

transparent and subject to review;

(b) documents for which third parties hold intellectual

property rights;

(c)

documents which are excluded from access by virtue

of the rules of access of the public administration, including on

the grounds of

(i) the protection of national security,

defence or public security, and

(ii) statistical confidentiality, or

(iii) commercial confidentiality such

as

business, professional or company secrets;

(d) documents access to which is restricted by virtue of

the rules of access of the public administration, including cases

whereby citizens or companies have to prove a particular

interest to obtain access to documents;

(e)

parts of documents containing only logos, crests and

insignia;

(f)

documents access to which is excluded or restricted

by virtue of the rules of access on the grounds of protection of

personal data, and parts of documents accessible by virtue of

those rules of access which contain personal data the re-use of

which has been defined by law as being incompatible with the

Data Protection Act with regard to the processing of personal

data;

(g) documents held by public service broadcasters and

their subsidiaries, and by other bodies or their subsidiaries for

the fulfilment of a public service broadcasting remit;

(h) documents held by educational and research

establishments, including organisations established for the

transfer of research results, as well as research units within

public sector bodies, schools and universities, except university

libraries; and

(i)

documents held by cultural establishments, other

than libraries, museums and archives.

This Act builds on and is without prejudice to rules for Applicability of

access to documents held by the public administration in accordance the

Information

with the provisions of the Freedom of Information Act.

Act.

A public sector body shall allow the re-use of public sector Applicability of

information in full compliance with the principles relating to the the

Protection Act.

protection of personal data in accordance with the provisions of the

Data Protection Act.

The obligations imposed by this Act shall apply only Applicability of

insofar as they are compatible with the provisions of international other

legislation.

agreements on the protection of intellectual property rights, in

particular the Berne Convention and the Trade-Related Aspects of

Intellectual Property Rights (TRIPS) Agreement. In case of conflict,

the provisions of the Trademarks Act, Patents and Designs Act, Cap. 416.

Copyright Act, Intellectual Property Rights (Cross-Border Measures) Cap. 415.

Act and the Enforcement of Intellectual Property Rights (Regulation) Cap.

414. Act shall prevail.

Subject to article 8, public sector bodies shall ensure that Re-use of public

documents to which this Act applies in accordance with article 3 shall sector

information.

be re-usable for commercial or non-commercial purposes in

accordance with the conditions set out in this Act.

For documents in which libraries, including university Documents in

libraries, museums and archives hold intellectual property rights, which

intellectual

public sector bodies shall ensure that, where the re-use of such property

are held.

documents is allowed, these documents shall be re-usable for

commercial or non-commercial purposes in accordance with the

conditions set out in this Act.

Public sector bodies shall, through electronic means where Processing of

possible and appropriate, process requests for re-use and shall make the requests.

document available for re-use to the applicant or, if a licence is needed,

finalise the licence offer to the applicant within the time-frames laid

down for the processing of requests for access to documents.

(1)

An applicant’s request to a public sector body shall - Requirements

for requests for

re-use.

(a)

be delivered in writing, including by post or

electronically to an office of the public sector body;

(b) provide such information concerning the document

as is reasonably necessary to enable a responsible officer of the

public sector body to identify it; and

(c)

specify a postal address at which notices under this

Act may, if necessary, be sent to the applicant.

(2) No applicant shall be required to justify or give any

reasons for a request under this Act, and any beliefs of the public

sector body as to what are the applicant’s reasons for seeking access

and re-use of a document shall not affect that request.

(3) Where a person -

(a)

wishes to make a request to a public sector body; or

(b) has made to a public sector body a request that does

not comply with sub-article (1),

it is the duty of the public sector body to take reasonable steps to

assist the person to make the request in a manner that complies with

sub-article (1), and it shall do so at no charge.

(4) Public sector bodies covered under article 3(g), (h) and (i)

shall not be required to comply with the requirements of this article.

Article 8, article 10 and article 11 of the Freedom of

Information Act shall apply, mutatis mutandis, to the requests for re-

use made in accordance with article 10(1) of this Act.

(1) When a request for re-use is not accepted, the

applicant is to be informed in writing of the reason for such refusal.

The notification of refusal is to contain a reference to the means of

redress available to the applicant.

(2) When a request for re-use is refused because a third party

owns relevant intellectual property rights in the document, the

notification of refusal shall indicate, where known, a reference to the

natural or legal person who is the right holder, or alternatively to the

licensor from which the public sector body has obtained the

document. Libraries, including university libraries, museums and

archives shall not be required to include such a reference.

(1) A document is to be made available to the applicant

in the format and language in which it exists on the date of response

to the request for re-use. Where possible and appropriate, a document

shall be made available for re-use in open and machine-readable

format together with their metadata. Both the format and the metadata

should, in so far as possible, comply with formal open standards.

(2) Public sector bodies shall not be obliged to

(a)

create or adapt a document; or

(b) provide an extract from a document in order to

comply with sub-article (1) where this would involve

disproportionate effort, going beyond a simple operation.

Public sector bodies shall not be required to continue to Production or

produce or store a certain type of document for the purposes of re-use storage

documents.

by a private or public sector organisation.

(1) A public sector body may charge a fee to an Charges.

applicant for the re-use of a document, subject to any rules issued

under this Act

Provided that any charges set by the public sector body

shall be limited to the marginal costs incurred for their reproduction,

provision and dissemination.

(2) The proviso to sub-article (1) shall not apply to the

following

(a)

public sector bodies that are required to generate

revenue to cover a substantial part of their costs relating to the

performance of their public tasks;

(b) by way of exception, documents for which the

public sector body concerned is required to generate sufficient

revenue to cover a substantial part of the costs relating to their

collection, production, reproduction and dissemination. The

public sector body shall pre-establish such requirements and

publish them by electronic means, where possible and

appropriate;

(c)

libraries, including university libraries, museums

and archives.

(3) In the cases referred to in sub-article (2)(a) and (b), the

public sector bodies concerned shall calculate the total charges

according to objective, transparent and verifiable criteria as set out in

the rules issued under this Act. The total income of those bodies from

supplying and allowing re-use of documents over the appropriate

accounting period shall not exceed the cost of collection, production,

reproduction and dissemination, together with a reasonable return on

investment. Charges shall be calculated in line with the accounting

principles applicable to the public sector bodies involved.

(4) Where charges are made by the public sector bodies

referred to in sub-article (2)(c), the total income from supplying and

allowing re-use of documents over the appropriate accounting period

shall not exceed the cost of collection, production, reproduction,

dissemination, preservation and rights clearance, together with a

reasonable return on investment. Charges shall be calculated in line

with the accounting principles applicable to the public sector bodies

involved.

(5) Where a public sector body decides to charge an applicant

a fee, it shall advise him accordingly and inform him that he has the

right to appeal to the Administrative Review Tribunal as provided

under article 24(3) if he feels that the fee is excessive

Provided that if the fee is a standard fee established by

rules under this Act, the Tribunal may only inquire into whether the

rules have been correctly applied.

(6) A public sector body may waive any fees payable in

respect of a particular application if, in the opinion of the authority -

(a)

the fee payable is so small as to be not worth

collecting; or

(b) payment of the fee would cause financial hardship to

the applicant, bearing in mind the applicant’s means and

circumstances.

(7) Where a public sector body fails to meet the time limit set

by article 11, it shall not charge any fee for the re-use of a document.

(1) A public sector body shall ensure that the following

information is made available to the public, where possible and

appropriate by electronic means

(a)

where standard charges are applied, any applicable

conditions for re-use and the actual amount of those charges,

including the calculation basis for such charges;

(b) in case of any charges for re-use other than standard

charges, the factors that are taken into account in the calculation

of those charges;

(c)

a list of main documents available for re-use,

including any licence terms involved; and

(d) details of the means of redress available to the

applicants for re-use of documents relating to any decision or

practice affecting them.

(2) In case of any charges for re-use other than standard

charges referred to in sub-article (1)(b), the public sector body shall,

upon request, indicate the way in which such charges have been

calculated in relation to the specific re-use request.

(1) Where it is deemed appropriate by the public sector Licences.

body that conditions on re-use are imposed, such conditions shall be

imposed through a licence. These conditions shall not be

discriminatory for comparable categories of re-use, nor shall they be

such as to unnecessarily restrict the way in which a document can be

re-used including restrictions in competition.

(2) Any licence imposing conditions shall be fair and

transparent.

(3) If a public sector body which holds a document wishes to

re-use the document for its commercial activities which fall outside

the scope of its public task, the same conditions shall apply to that re-

use as would apply to re-use by any other applicant.

(4) Public sector bodies shall use such standard licences as the

Minister responsible for public sector information may direct. Such

standard licences may be adapted to meet particular licence

applications and shall be made available in digital format and can be

processed electronically.

The Minister responsible for public sector information Practical

arrangements.

may issue such directives or rules in order to

(a)

make practical arrangements facilitating the search

for documents available for re-use, such as asset lists of main

documents with relevant metadata, accessible where possible

and appropriate online and in machine-readable format, and

portal sites that are linked to the asset lists; and

(b) where possible facilitate the cross-linguistic search

for documents.

(1) The re-use of documents shall be open to all potential Prohibition of

actors in the market, even if one or more market players already exclusive

arrangements.

exploit added-value products based on these documents. Subject to

sub-article (2), contracts or other arrangements between the public

sector bodies holding the documents and third parties shall not grant

exclusive rights.

(2) However, where an exclusive right is necessary for the

provision of a service in the public interest, the validity of the reason

for granting such an exclusive right shall be subject to regular review,

and shall, in any event, be reviewed every three years. The exclusive

arrangements established after the 27 June 2013 shall be transparent

and made public. This sub-article shall not apply to digitisation of

cultural resources.

(3) Notwithstanding the provisions of sub-article (1), where an

exclusive right relates to digitisation of cultural resources, the period

of exclusivity shall in general not exceed ten years. In case where that

period exceeds ten years, its duration shall be subject to review

during the eleventh year and, if applicable, every seven years

thereafter.

The arrangements granting exclusive rights referred to in

article 19(3) shall be transparent and made public.

In the case of an exclusive right referred to in article 19(3),

the public sector body concerned shall be provided free of charge

with a copy of the digitised cultural resources as part of those

arrangements. That copy shall be available for re-use at the end of the

period of exclusivity.

Any exclusive arrangement existing on the 1 July 2005 that

does not qualify for the exception under article 19(2) shall be

terminated at the date on which it comes to an end in accordance with

its terms, or on the 31 December 2008, whichever is the earlier.

Without prejudice to article 22, exclusive arrangements

existing on 17 July 2013 that do not qualify for the exceptions under

articles 19(2) and (3) shall be terminated at the end of the contract or

in any event not later than 18 July 2043.

(1) Where a decision on re-use has been served to the

applicant, the applicant may request the public sector body to review

its decision.

(2) The request for review to the public sector body shall

(a)

be made in writing;

(b)

state the reason for the review; and

(c)

include a copy of the written notification of the

decision being reviewed,

and shall be filed within twenty days from receipt of the decision by

the public sector body.

(3) Where the public sector body retains the decision taken,

the applicant may appeal to the Administrative Review Tribunal, as

defined in the Administrative Justice Act, against the notice within Cap. 490.

twenty working days.

(4) Any decision given by the public sector body shall contain

particulars of the right of appeal to the Administrative Review

Tribunal.

(5) Decisions of the Tribunal shall be subject to appeal to the

Court of Appeal as provided for by article 22 of the Administrative Cap. 490.

Justice Act.

The Minister responsible for public sector information may Regulations.

make regulations for any or all of the following purposes

(a)

to prescribe application forms, manual or electronic

and other documents required for the purposes of this Act, or

authorising any person to prescribe or approve such forms or

documents

Provided that forms cannot place requirements on

applicants additional to those set out by this Act, and that an

application meeting all such requirements shall still be

considered if it is made otherwise than using the prescribed

form;

(b) to establish a regulatory authority responsible for the

monitoring of the implementation of the provisions of this Act;

(c)

to establish an entity responsible

for

the

implementation of the provisions of this Act;

(d) to prescribe reasonable charges or scales of

reasonable charges for the purposes of this Act; and

(e)

to provide for such matters as are contemplated by

or necessary for giving full effect to this Act and for its due

administration.

The Re-Use of Public Sector Information Order is hereby Revocation of

revoked, without prejudice to anything done or omitted to be done Re-Use

Public Sector

thereunder.

Information

Order.

Passed by the House of Representatives at Sitting No. 298 of the

7th October, 2015.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€1.08