ACT No. XXXV of 2021 AN ACT to amend the Re-Use of Public Sector Information Act, Cap.

I assent.

(L.S.)

GEORGE VELLA

President

2nd July, 2021

ACT No. XXXV of 2021

AN ACT to amend the Re-Use of Public Sector Information Act, Cap.

546. 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:-

The short title of this Act is the Re-Use of Public Sector Short title.

Information (Amendment) Act, 2021 and this Act shall be read and

construed as one with the Re-Use of Public Sector Information Act, Cap. 546.

hereinafter referred to as "the principal Act".

Sub-article (2) of article 1 of the principal Act shall be Amendment of

article 1 of the

substituted by the following new sub-article

principal Act.

"(2) The purpose of this Act is to implement the provisions

of Directive (EU) 2019/1024 of the European Parliament and of

the Council of 20 June 2019 on open data and the re-use of public

sector information (recast).".

Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a) immediately before the definition "document" there

shall be added the following new definitions

" "anonymisation" means the process of changing

documents into anonymous documents which do not relate

to an identified or identifiable natural person, or the process

of rendering personal data anonymous in such a manner that

the data subject is not or no longer identifiable;

"application program interface" or "API" means a set

of automated functions and protocols that enable machine-

to-machine communications for the exchange and

consumption of data in a dynamic environment. Such APIs

shall follow a registration process prior to be authorised and

included in the national data portal;";

(b) immediately after the definition "document" there

shall be added the following new definitions

" "dynamic data" means documents in a digital form,

subject to frequent or real-time updates, in particular

because of their volatility or rapid obsolescence; data

generated by sensors are typically considered to be dynamic

data;

"high-value datasets" means documents the re-use of

which is associated with important benefits for society, the

environment and the economy, in particular because of their

suitability for the creation of value-added services,

applications and new, high-quality and decent jobs, and of

the number of potential beneficiaries of the value-added

services and applications based on those datasets;";

(c) immediately after the definition "public sector entity"

there shall be added the following new definitions

" "public undertaking" means any undertaking

(a) active in the areas defined in Directive

2014/25/EU;

(b) acting as public service operator

pursuant to Article 2 of Regulation (EC) No. 1370/

2007;

(c) acting as air carriers fulfilling public

service obligations pursuant to Article 16 of

Regulation (EC) No. 1008/2008; or

(d) acting as Community shipowners

fulfilling public service obligations pursuant to

Article 4 of Regulation (EEC) No. 3577/92 over

which the public sector bodies may exercise

directly or indirectly a dominant influence by virtue

of their ownership of it, their financial participation

therein, or the rules which govern it. A dominant

influence on the part of the public sector bodies

shall be presumed in any of the following cases in

which those bodies, directly or indirectly

(i) hold the majority of the undertaking's

subscribed capital;

(ii) control the majority of the votes

attaching to shares issued by the undertaking;

(iii) can appoint more than half of the

undertaking's administrative, management or

supervisory body;

"research data" means documents in a digital form,

other than scientific publications, which are collected or

produced in the course of scientific research activities and

are used as evidence in the research process, or are

commonly accepted in the research community as necessary

to validate research findings and results;";

(d) the definition "re-use of documents" shall be

substituted by the following new definition

" "re-use of documents" means the use by a person,

public sector body, or legal entity of a document held

(a) the public sector body or another public

sector body, as the case may be, 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,

except for the exchange of documents between

public sector bodies purely in pursuit of their public

tasks; or

(b) public undertakings, for commercial or

non-commercial purposes, other than for the initial

purpose of providing services in the general interest

for which the documents were produced, except for

the exchange of documents between public

undertakings and public sector bodies purely in

pursuit of the public tasks of public sector bodies."

and immediately thereafter there shall be added the

following new definition

" "standard licence" means a set of predefined re-use

conditions in a digital format, preferably compatible with

standardised public licenses available online.".

Article 3 of the principal Act shall be amended as follows

(a) paragraph (h) thereof shall be substituted by the

following new paragraph

"(h) documents held by educational establishments

of secondary level and below, research establishments,

research performing organisations and research funding

organisations, 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, in the case of all other educational

establishments, documents other than those referred to in

paragraph (b);"; and

(b) immediately after paragraph (i) thereof there shall be

added the following new paragraphs

"(j) documents held by public undertakings

(i) produced outside the scope of the

provision of services in the general interest as

defined by law or other binding rules;

(ii) related to activities directly exposed to

competition, under regulation 24 of the Public

Procurement of Entities operating in the Water,

Energy, Transport and Postal Services Sector

Regulations, and therefore not subject to

procurement rules;

(k) documents access to which is excluded or

restricted on grounds of sensitive critical infrastructure

protection related information as defined in article 2 of the

Critical Infrastructures and European Critical

Infrastructures (Identification, Designation and Protection)

Order;".

In article 6 of the principal Act the words "shall prevail." shall

be substituted by the words "shall prevail:" and immediately thereafter

there shall be added the following new proviso

"Provided that the right for the maker of a

database provided for in article 25 of the Copyright Act

shall not be exercised by public sector bodies in order to

prevent the re-use of documents or to restrict re-use

beyond the limits set by this Act.".

Immediately after article 8 of the principal Act there shall be Addition of new

added the following new article

(1) Without prejudice to paragraph (b) of

article 3, research data shall be re-usable for commercial

or non-commercial purposes in accordance with articles

13 to 23 (both articles included), insofar as they are

publicly funded and researchers, research performing

organisations or research funding organisations have

already made them publicly available through an

institutional or subject-based repository. In that context,

legitimate commercial interests, knowledge transfer

activities and pre-existing intellectual property rights

shall be taken into account.

(2) The Minister responsible for public sector

information may adopt national policies and relevant

actions aimed at making publicly funded research data

openly available, following the principle of open by

default and the FAIR principles.

(3) Concerns relating to intellectual property rights,

personal data protection and confidentiality, security and

legitimate commercial interests, shall be taken into

account in accordance with the principle of "as open as

possible, as closed as necessary". Open access policies

shall be addressed to research performing organisations

and research funding organisations.".

7. Article 9 of the principal Act shall be renumbered as sub-article Amendment of

(1) and immediately thereafter there shall be added the following new article

sub-article

"(2) Where no time limits or other rules regulating

the timely provision of documents have been established,

public sector bodies shall process the request and shall

deliver the documents for re-use to the applicant or, if a

licence is needed, finalise the licence offer to the applicant

as soon as possible, and in any event within twenty (20)

working days of receipt. That time frame may be extended

by a further twenty (20) working days in the case of

extensive or complex requests. In such cases, the applicant

shall be notified as soon as possible, and in any event within

three weeks of the initial request, that more time is needed to

process the request and the reasons why

Provided that any licence involved shall be in

accordance with the provisions of article 17.".

8. Sub-article(4) of article 10 of the principal Act shall be

substituted by the following new sub-article

"(4) The following entities shall not be required to

comply with the requirements of this article

(a) public undertakings;

(b) educational establishments, research

performing organisations and research funding

organisations.".

Article 13 of the principal Act shall be amended as follows

(a) sub-article (1) thereof shall be substituted by the

following new sub-article

"(1) Without prejudice to the Schedule, public sector

bodies and public undertakings shall make their documents

available in any pre-existing format or language and, where

possible and appropriate, by electronic means, in formats

that are open, machine-readable, accessible, findable and re-

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

metadata shall, where possible, comply with formal open

standards."; and

(b) immediately after sub-article (2) thereof there shall be

added the following new sub-articles

"(3) Sub-article (1) shall apply to existing documents

held by public undertakings which are available for re-

use.

(4) The high-value datasets, as listed in accordance

with the Schedule, shall be made available for re-use in

machine-readable format, via suitable APIs and, where

relevant, as a bulk download.".

Immediately after article 13 of the principal Act there shall be

added the following new article

(1) Public sector bodies shall make dynamic

data available for re-use immediately after collection, via

suitable APIs and, where relevant, as a bulk download.

(2) Where making dynamic data available for re-use

immediately after collection, as referred to in sub-article

(1), would exceed the financial and technical capacities

o f t h e p u b l i c s e c t o r b o d y, t h e r e b y i m p o s i n g a

disproportionate effort, those dynamic data shall be made

available for re-use within a time frame or with

temporary technical restrictions that do not unduly

impair the exploitation of their economic and social

potential.

(3) The provisions of this article shall apply to

existing documents held by public undertakings which

are available for re-use.".

11. Article 15 of the principal Act shall be amended as follows

(a) sub-article (1) thereof shall be substituted by the

following new sub-article

"(1) The re-use of documents shall be free of charge

Provided that the recovery of marginal costs

incurred for the reproduction, provision and

dissemination of documents as well as for anonymisation

of personal data and measures taken to protect

commercially confidential information may be allowed.";

(b) paragraph (b) of sub-article (2) thereof shall be

substituted by the following new paragraph

"(b) public undertakings;";

(c) sub-article (3) thereof shall be substituted by the

following new sub-article

"(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 and data

storage, together with a reasonable return on investment,

and, where applicable, the anonymisation of personal data

and measures taken to protect commercially confidential

information.

Charges shall be calculated in line with the accounting

principles applicable.";

(d) sub-article (4) thereof shall be substituted by the

following new sub-article

"(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, data

storage, preservation and rights clearance, and where

applicable the anonymisation of personal data and measures

taken to protect commercially confidential information,

together with a reasonable return on investment. Charges

shall be calculated in line with the accounting principles

applicable."; and

(e) immediately after sub-article (7) thereof there shall be

added the following new sub-article

"(8) The re-use of the following shall be free of

charge for the user

(a) subject to the Schedule, the high-value

datasets, as listed in accordance with item 1 of that

Schedule;

(b) research data referred to in article 8A.".

12. Sub-article (1) of article 17 of the principal Act shall be

substituted by the following

"(1) The re-use of documents shall not be subject to

conditions, unless such conditions are objective,

proportionate, non-discriminatory and justified on

grounds of a public interest objective.

When re-use is subject to conditions, those conditions

shall not unnecessarily restrict possibilities for re-use

and shall not be used to restrict competition.

Where it is deemed appropriate by the public sector

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 and such

conditions shall be objective, proportionate and justified

on grounds of a public interest objective.".

13. Article 18 of the principal Act shall be amended as follows

Amendment of

article 18 of the

principal Act.

(a) in paragraph (a) thereof the words "the asset lists; and"

shall be substituted by the words "the asset lists;"; and

(b) in paragraph (b) thereof the words "search for

documents." shall be substituted by the words "search for

documents; and" and immediately thereafter there shall be added

the following new paragraph

"(c) continue efforts to simplify access to datasets by

providing a single point of access and making available

suitable datasets held by public sector bodies with regard to

documents to which this Act applies, in formats that are

accessible, readily findable and re-usable by electronic

means.".

Article 19 of the principal Act shall be amended as follows

Amendment of

article 19 of the

principal Act.

(a) in sub-article (1) thereof immediately after the words

"public sector bodies" there shall be added the words "or public

undertakings";

(b) in sub-article (2) thereof the words "27 June 2013"

shall be substituted by the words "16 July 2019"; and

(c) immediately after sub-article (3) thereof there shall be

added the following new sub-articles

"(4) Legal or practical arrangements that, without

expressly granting an exclusive right, aim at, or could

reasonably be expected to lead to, a restricted availability

for the re-use of documents by entities other than the third

party participating in the arrangement, shall be made

publicly available online at least two (2) months before

their coming into effect.

(5) The effect of such legal or practical arrangements

on the availability of data for re-use shall be subject to

regular reviews and shall, in any event, be reviewed every

three (3) years. The final terms of such arrangements shall

be transparent and made publicly available online.".

Article 23 of the principal Act shall be substituted by the

following new article

"23. (a) Without prejudice to article 22, exclusive

arrangements existing on 17 July 2013 that do not qualify

for the exceptions under sub-articles (2) and (3) of article

19 and that were entered into by public sector bodies,

shall be terminated at the end of the contract and in any

event not later than 18 July 2043.

(b) Exclusive arrangements existing on 16 July

2019 that do not qualify for the exceptions under sub-

articles (2) and (3) of article 19, and that were entered

into by public undertakings, shall be terminated at the

end of the contract and in any event not later than on 17

July 2049.".

Immediately after article 25 of the principal Act there shall be

added the following new Schedule

"SCHEDULE

1. The provisions of this Act shall apply to the following thematic

categories of high-value datasets

(a)

geospatial;

(b)

earth observation and environment;

(c)

meteorological;

(d)

statistics;

(e)

companies and company ownership;

(f)

mobility.

2. The specific high-value datasets belonging to the categories in

item 1, as may be adopted in terms of Directive 2019/1024/EU, shall be

(a)

available free of charge, subject to the provisions of

item 3;

(b)

machine readable;

(c)

provided via APIs; and

(d)

provided as a bulk download, where relevant.

3. The requirement for high-value datasets to be available free of

charge shall not apply to

(a)

libraries, including university libraries, museums and

archives;

(b) 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 and complying with the

requirement to make datasets free of charge would lead to a

substantial impact on the budget of the bodies involved. Provided

that this exemption shall be limited to a period of not more than

two (2) years following the entry into force of the relevant

implementing act adopted in terms of Directive 2019/1024/EU.".

Passed by the House of Representatives at Sitting No. 480 of the

28th June, 2021.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.26