IP, Technology & Data

Last month, the Scottish Government published its Open Data Strategy. The Strategy was published in advance of an updated version of the EU Re-Use of Public Sector Information Directive being implemented into UK law this year. The Strategy sets out how public sector organisations in Scotland should make their no-personal and non-commercially sensitive data easily available to others to re-use.

Why should data be made open?

Making public sector data “open” can lead to a number of benefits:

  • Delivery of improved public services – enabling communities and individuals to understand more about public services, gain insight into their own community and contribute to future design and delivery.
  • Innovation – by publishing data in a reusable form it can be used for new purposes resulting in wider social and economic benefits.
  • Accountability and transparency – making data open will allow greater transparency and accountability in the delivery of public services.

What are the key parts of the Strategy?

The Strategy adopts the G8 Open Data Principles:

  • Open data by default – When new data is collected making it open should be part of the business process by ensuring that the opening up and reuse of data is built into the data collection process.
  • Quality and Quantity – Published data should be supported by metadata to ensure that consumers of the data understand it and are aware of its limitations.
  • Usable by all – Data should be published in a manner which supports easy discovery and re-use of the data.
  • Releasing data for improved governance – Data will be released which supports delivery for better public services.
  • Releasing data for innovation – The open data should be used to develop new products and services for commercial and non-commercial use to create wider economic and societal benefits. It should also be used in education to increase awareness and participation and inspire a new generation of data users.

To put these principles in practice organisations will have to develop Open Data publication plans. These plans will set out an organisation’s commitment to making its data open and identify how it will achieve this. Core data that is to be made open should be identified by organisations. Where appropriate, this can link to an organisation’s publication scheme under freedom of information legislation.

The intention is that published data should be of high quality, comprehensible and accurate. Where data is time sensitive, there is an expectation that updated datasets should be made available on a continuing basis. For many organisations, this will be a large task, which will likely require new processes to be developed and put in place.

Providing accurate metadata will be key to ensuring users can find relevant data and understand what is contained in it. Organisations are encouraged to consider making use of existing publishing platforms to ensure that data is easy to find. To assist with this, the Scottish Government has said it will establish a Scottish Data Discovery Site which will provide a common entry point to all of Scotland’s Open Data.

Data currently held will be identified and prioritised before its release. The Scottish government intends to publish data in a format that is 3* or above under Sir Tim Berners-Lee’s 5* Scheme http://5stardata.info/ for open data. The Scottish Government has also said that it will provide resources to support other organisations understand the formats in which data can be made available and relevant technologies

Licensing of open data

As a starting point organisations, should not charge for data. However, it is acknowledged that there will be a small number of exceptions to this general rule – including payment for additional services, licensing retractions and trading funds. Generally, charges for data should be no more than are necessary to recover the marginal costs incurred by the organisation in making the data available.

Organisations are encouraged to make data available under the Open Government License (OGL).

Where this is not possible or appropriate then organisations should seek to provide clear licensing information to potential users of the data. For example, if any IP in the data is owned (or jointly) by a third party then the OGL will not work and bespoke arrangements will be required. I am aware of at least one software application used by many public authorities whereby the data created using the platform is owned by the licensor, the licence terms of which would prohibit distribution on an open data basis.

This means that organisations will need to look carefully at their third party contracts under which data is generated before they can determine whether, and the terms on which data can be made available.

What Actions will the Scottish Government take to assist organisations?

The Strategy highlights national actions that the Scottish Government will take to assist organisations move to having Open Data.

  • Development of a resource pack which including a template production plan.
  • Training to assist in recognising the value of data and improving the quality of it.
  • Development of a resource pack on metadata.
  • Establish a Scottish Data Discovery Site.
  • Development of a resource pack including guidance on format and available technologies.
  • Establish channels of communication to identify key data sets and types of data users are interested in.
  • Promotion of the Re-Use of Public Sector Regulations.
  • Development of a resource pack with guidance on licensing.

What are the timescales?

Organisations should have an open data publication plan in place and published on their website by December 2015. National actions will be in place by early 2016 and all appropriate data should be published in a 3* or above format by 2017.

Brodies has one of Scotland’s leading information law and intellectual property law teams. If you require assistance in understanding how the Scottish Government’s strategy applies to your organisation, consider the interaction of open data with intellectual property rights and data protection, or otherwise need help to develop your plan, please get in touch.

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Martin Sloan

Partner at Brodies LLP
Martin is a partner in Brodies Technology, Information and Outsourcing group and has wide experience of advising clients on technology procurement and IT and business process outsourcing projects. Martin also advises on data protection (including the GDPR), and general technology and intellectual property law, and has a particular interest in the laws applying to social media and new technology such as mobile apps, contactless/mobile payments, and smart metering.
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