Public sector data and open data

Public sector data are the information contained in documents produced or received by public authorities in the course of their public service mission. Their free re-use, without charge, referred to as open data, is governed by Articles L. 321-1 et seq. of the French Code of Relations between the Public and the Administration, which transpose the successive directives on public sector information, including Directive (EU) 2019/1024 on open data. The regime operates alongside copyright and database law, which the statute specifically limits in the case of public authorities.

The principle of free re-use

Public sector information may be re-used by any person for purposes other than the public service mission for which the documents were drawn up. Public authorities are required to publish online, in an open and readily reusable format, the disclosable documents they hold, subject to the secrets protected by law and to personal data. Re-use is in principle free of charge, a fee being permitted only in limited cases. It is subject to a licence where the authority so decides, that licence having to be chosen from those approved by regulation, including the Open Licence and the Open Database Licence.

Reservation of third-party intellectual property rights

Information contained in documents in which third parties hold intellectual property rights is not regarded as public sector information and therefore falls outside the free re-use regime. Conversely, public authorities may not rely on their own sui generis right as database producer to obstruct the re-use of the public sector information they contain. The copyright of public servants in works created in the performance of their duties is itself exercised within the limits necessary to the public service mission, under the specific regime of public servants’ copyright.

Uses and limits in practice

The opening of public sector data feeds information services, compliance tools and training data for artificial intelligence models. The applicable licence generally requires the source and the date of the last update to be stated, and it does not permit the meaning of the data to be distorted. The re-user must therefore check, for each dataset, the applicable licence, the existence of third-party rights and the obligations relating to the protection of personal data, failing which it incurs liability.

Key points

Public sector information may in principle be re-used freely and without charge under the licence chosen by the public authority, which cannot invoke its database producer’s right to oppose such re-use. Documents in which third parties hold rights remain excluded from this regime. Before any re-use, identify the applicable licence, verify the absence of third-party rights and comply with the rules on personal data. Contractors to public authorities must, for their part, negotiate the fate of their rights in the public procurement contract.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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