Law to leave wiggle room for public data profiteers

Forthcoming data laws will put only a loose cap on public bodies seeking to sell public information for profit, according to the head of a UK consultation on their scope.

Yet while the law change will also boost the amount of public information being sold for profit, the UK insists it will become harder for the majority of public bodies to get away with it.

Officially, by boosting the amount of public data that must be made freely available to the public, the data rule will fulfil a promise made by the coalition government’s biggest honchos: prime minister David Cameron, chancellor George Osborne, and Cabinet Office minister Francis Maude.

Alternatively, a severe compromise weakened the coalition government’s defining technical policy so much that the data experts behind it have cried foul and increased their calls for a total ban on public data profiteering.

These differences will be settled when the National Archives publishes draft regulations in December, just months before a general election that will force information-age electors to consider how well the coalition has looked after the public assets as it transfers them to the digital realm.

The government had in fact been using its open computing policy to drive a private road through the public sector. But its open data policy held that public assets should stay in public hands. That was until it turned that policy into law, and its former backers in the open data community reacted by saying it would actually help public data profiteers.

Creep (mission)

It extended the digital profit permit to public libraries, museums and archives – allowing them to operate online like commercial bodies, charging fees to digital visitors and paying some of the proceeds to people who owned cultural assets. Benefactors of the National Maritime Museum, for example, might get a constant trickle of money for old rope by copyrighting its likeness and displaying it online. The museum would take a cut. Other public bodies could similarly get permits to sell public data for profit under the new rules.

The UK extended the profit motive into these areas by pushing its partners in the European Union. Thus it insisted after the European Commission sought to implement the total profit ban that Cameron’s open data backers wanted.

But the UK and other EU countries would have to define their own conditions public bodies to profit from data. The resulting European Directive on Public Sector Information left a blank space for countries to fill in the details.

The model for this were partially-privatized public bodies created by previous Conservative governments in the UK. These “Trading Funds” were under orders to trade their public assets to cover their costs, and to make a profit as well – a “reasonable return on investment”.

Now libraries and so on could do that sort of profiteering too. Most public data would be prohibited for trade though because tax payers had already paid for it. It’s just when costs went beyond convention that public funding would fall short. Such as when libraries found they could no longer afford to stock long-held periodicals because their publishers had moved them online and started charging data subscriptions. Other public bodies would be permitted to trade data too, perhaps if their costs went up similarly and central government refused cover.

The blank in the EU directive would let countries decide how public data profiteers calculated their data fees. And how much profit made a “reasonable return on investment”.

National Archives put that crucial question to public consultation. But the resulting regulations will dodge the question of profit.

The open data lobby reckoned the blank bit of the law would create more room for public bodies to profit from data. They wanted it prohibited. But they couldn’t even find out how much profit the UK was going to permit public bodies to make.

Mouth (horse’s)

Howard Davies, who has lead the consultation as National Archives strategy manager, told Computer Weekly the regulations would leave the answer blank so the government could change the rules easily.

“I am sure what we are going to be looking at is that there will be a form of words that directs public sector bodies that are needing to make a charge to some externally referenced piece of guidance,” said Davies. “I don’t see that it’s going to be chapter and verse in the regulation.”

Before now a Treasury document called Managing Public Money had put a loose cap on the profits of Trading Funds.

It said government services competing with private sector suppliers should try and earn an equivalent rate of profit to their competitors. That would be about five or ten per cent. But they might earn to up to 15 per cent if they were in a risky business.

Davies said the regulations would not likely refer to Managing Public Money even. They would just call upon external guidance.

The existing profit cap therefore looked looser than before. But Davies insisted so few public bodies would be permitted to charge profit that the rules would rarely apply.

“If you go outside the Trading Funds, the exceptions are going to be few and far between,” he said.

“This is all public sector information. [Public bodies] are already funded to collect, hold and manage that information. So the cases where you need to cover costs and make an additional charge is going to be so rare I can’t think of an example,” said Davies.

Shop (private)

The amount of public data to be sold for profit had nevertheless been increased dramatically. And it had been open-ended.

This was dire in the open data lobby’s view: it played into the hands of Trading Funds like Ordnance Survey, which makes money selling geographical data from the national mapping database. OS had according to Ellen Broad, policy lead at the Open Data Institute, been particularly opposed to a profit prohibition.

As though to prove their point, OS didn’t bother responding to the consultation, not even to contribute to the question most pertinent to its health – whether it should continue charging profit. A spokesman for OS said it “hadn’t felt the need to respond on this occasion”.

The law change secured its future broadly. But it has been exploring further steps toward privatization. Its spokesman said it was talking to the Department for Business, Innovation and Skills (BIS – its parent) about releasing its assets as open data after all.

Portrayed by open data advocates as an obstruction to progress and prosperity, OS nevertheless employed 1,027 people last year. The case against it and other public European data bodies has long been that many small private companies are better than one big public one. That was the premise for the partial privatization of the Trading Funds as well in prior decades as well.

Meanwhile, half of Ordnance Survey’s £144m sales came from other government bodies last year. And two thirds of its profits – £32m – went back to where they came from, in a dividend payment to BIS.

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