The French Lemaire Act was promulgated in France on October 7, 2016. It aims at liberating innovation and creating a framework of trust that guarantees the rights of users and protects their personal data. One of its objectives is to ensure a public service of data in France. This public service has already entered into force and is constantly improving. This notion of public service of data comes in the period where one speaks of data as the black gold of the 21st century. It will allow a legal framework to be established.
I. The availability of data
Now it is a public service like any other. It has a physical existence, a definition and is found on data.gouv.fr/en/reference.
This service comprises 4 dimensions namely:
– Data producers (administrations);
– Data broadcasters
– Data users (private and public persons/actors who will reuse the data); and
– The Etalab mission that drives the establishment of this public service.
Currently, 9 databases are included in the public service. They are now published and accessible to all and are the followings:
– BAN: National Address Base;
– Sirene Base of businesses and their establishments;
– COG: Official Geographical Code;
– PCI: Computerized Cadastral Plan;
– RPG: Graphical parcel registry;
– Repository of the administrative organization of the State;
– RGE: Large-Scale Repository;
– RNA: National Directory of Associations; and
– ROME: Operational Directory of Trades and Jobs.
Some have objected to the fact that this data was already available before the creation of this public service. On the other hand, the publication was sparse and unknown. Thanks to the creation of a public service dedicated to data, the French mission, Etalab, hopes to ensure the sustainability of this data, its economic security and the security of the investments of the data producers. In addition, this public service should guarantee stability and visibility of these databases.
As a lawyer one can only notice the absence of the legal data. This question was debated when the law was passed. It had been concluded that this data was not yet ready for publication, implying that it will be published one day and that a legal basis is not excluded.
II. The public service of data and intellectual property rights
Before, the law of July 17, 1978 on the freedom of access to administrative documents and the re-use of public information was the primary base for this public data which was based on two pillars:
– Access to administrative documents; and
– The use of the information contained therein.
Now, the French Lemaire Act adds the principle of re-use of this data which results from the access to this data. Without access to the data no reuse is possible. In contrast to access, use and re-use of the data, there are intellectual property rights. Indeed, who says openness of data means freedom. On the contrary, an intellectual property right implies exploitation monopoly and restricted access. It would appear that the public service of data and intellectual property rights are too different to be reconciled.
This opposition goes even further with the French Lemaire Act which imposes a publication of the data. Until now, the data was available at the request of the citizens. Now the logic is reversed since the administration is directly obliged to publish the data.
It is in this context that intellectual property rights arise. In fact, when the data was available on individual request, the risk of a violation of a right was less important. On the contrary, the risk of reproduction and representation is much more significant when the data is spontaneously published and accessible to all.
The law still provided a limit. Article 11 of the French Lemaire Act provides: “Subject to intellectual property rights held by third parties, administration rights […] cannot impede the re-use of the content of the databases that these administrations publish.” Thus, the re-use of the data found on the databases, which are under the control of the public service, is not absolute.
Considering intellectual property rights, the doctrine is unanimous meaning that only copyrights are likely to be heard in the reservation formulated, which therefore does not include trademarks or patents.
It is then a question of establishing which copyright owners can avail themselves of this reservation. In the event that the administration could object to re-use on the basis of its own intellectual property rights, the right of re-use would be obsolete and irrelevant. Logically, it appears from the study of case law that it is the rights of third parties to the administration.
In the same logic, the French law states that administrations cannot avail themselves of their database producer rights in order to impede the re-use of the data contained in these databases.
III. Conflict between the public service and the protection of personal data
When we talk about Open data, we refer to the opening of the data. There therefore exists a natural opposition between the open data and the protection of personal data. In order to reconcile the two, the French law for the digital economy makes a distinction between privacy and personal data.
– Privacy: the primary position of the legislator is to promote open data but always in the respect of privacy. As a matter of principle, a document affecting privacy cannot be communicable at all.
– Personal data: there is no principle of prohibition and communication. The legislator proceeds otherwise. He says that it is possible to publish documents that include personal data and lists them. A decree is expected to list all documents that may be published without the need for treatment before publication.
Today, there is a harmonization between the right to communicate a document to a person and the right to publish it. Once a document is communicable, it can be published.
In conclusion, the debate between the publication of data and the protection of personal data is still current in France. It is important to realize that there exist restrictions on the publication of personal data, but also on data infringing an intellectual property right. Endowed with a New Technologies department, Dreyfus & associés can assist you on intellectual property law issues, as well as personal and new Information and Communication Technologies.