Proposed European Union Data Act

Background

In mid‑2021, the European Commission began consultation on a proposed Data Act and issued a discussion document (European Commission 2021).

By my reading, the proposed legislation and related measures (such as the proposed ePrivacy Directive) have the following aims at their core:

  • to tighten up how private data (including non‑personal data) is communicated and stored
  • to increase the sanctions for the misuse of such data
  • to improve the flow of information between businesses (B2B)
  • to promote fairness in regards access to B2B information and participation in nascent digital markets
  • to investigate business‑to‑government (B2G) information flow for reasons of public interest

The last point is of most interest to open energy system analysts. To that end, sixteen submitters from this community filed a submission under their own names (Morrison 2021) as described next.

Submission of June 2021

The submission was part of the Roadmap phase of consultation and was more designed to explore ideas than concrete proposals. Our submission was contained in this PDF file:

Our key points were as follows:

  • information under statutory reporting should be open licensed
  • the period of retention should be extended beyond the current five years
  • energy market transparency reporting should be overhauled
  • our preferred open licenses were “CC‑BY‑4.0, CC0‑1.0, or something inbound compatible”
  • business‑to‑government transfers, suitably aggregated and anonymized, would be useful
  • aspects of existing legislation should also be amended

We also stressed that with our domain:

  • data management is shifting from localized and disjoint to domain‑wide and community‑curated
  • open licensing, and specifically CC‑BY‑4.0, is a necessary condition for that shift

Next iteration

The next consultation loop ends on 03 September 2021 and is classified as Public Consultation:

It is not clear to me what is expected of this next iteration. For instance, the Commission has not issued another consultation document or proposed draft legislation. I am currently following this matter up.

References

European Commission (28 May 2021). Inception impact assessment: Data Act (including the review of the Directive 96/9/EC on the legal protection of databases) — Ares(2021)3527151. Brussels, Belgium: European Commission. Lead DG: CNECT/G1. Landing page for download given. Download name: 090166e5ddb6bc31.pdf.

Morrison, Robbie (25 June 2021). Submission on a proposed Data Act for the European Union from the perspective of energy system analysis — Release 07. doi:10.5281/zenodo.5032198. Berlin, Germany. Creative Commons CC‑BY‑4.0 license.

European Data Governance Act (DGA)

For completeness, the European Commission (2020) is also considering legislation on data governance in addition to the proposed Data Act above. Baloup et al (2021) review a draft and opine that many of the definitions may be problematic, especially those of ‘data’, ‘data holder’ and ‘data user’. (It is unusual to find a definition for “data” in law in any case.)

References

Baloup, Julie, Emre Bayamlıoğlu, Aliki Benmayor, Charlotte Ducuing, Lidia Dutkiewicz, Teodora Lalova, Yuliya Miadzvetskaya, and Bert Peeters (23 June 2021). White Paper on the Data Governance Act. Leuven, Belgium: KU Leuven Centre for IT and IP Law (imec). Available at SSRN.

European Commission (25 November 2020). Proposal for a Regulation of the European Parliament and of the Council on European data governance (Data Governance Act) — COM/2020/767 final. Brussels, Belgium: European Commission. Document 52020PC0767. Also available in other languages.

Wikipedia (ongoing). Data Governance Act. Wikipedia Project.

Updated guidance on the application of REMIT

REMIT = Regulation on Wholesale Energy Market Integrity and Transparency

REMIT covers the European single energy market. Since the outset of 2021, Northern Ireland is included but Great Britain not.

The previous guidance from European Union Agency for the Cooperation of Energy Regulators (ACER) was updated in May 2021.

References

ACER (11 May 2021). Guidance on the application of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency — 5th edition (5th ed). Ljubljana, Slovenia: Agency for the Cooperation of Energy Regulators (ACER).

European Commission (8 December 2011). “Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (text with EEA relevance)”. Official Journal of the European Union. L 326: 1–16.

Second submission

This stub is to indicate that there will be a second submission — closing Friday 3 September 2021. European Parliament (2021) provides a short briefing for those needing background. Please note also that a “proposed Act” would be a “Bill” under United Kingdom idiom.

Topics likely to be traversed in the next submission include:

  1. the impaired usability of public disclosure reporting by the European Energy Exchange (EEX)
  2. the notion of copyright authorship in datasets under a myriad of minor revisions and additions
  3. the legal dividing line between data and metadata (because literary annotations normally create a derivative work)
  4. the role of 96/9/EC database protection (if that legislation does persist) in the context of semantic web technologies
  5. examples of business‑to‑government data flows that would benefit energy system analysis
  6. the need for robust analysis on public license interoperability in the context of both plain datasets and 96/9/EC‑compliant databases (again should that provision continue)

The above points, minus the last, are best addressed by legislative change in the first instance. That said, the Commission could also consider providing statutory support for the open licensing of data.

Point 2 will draw Chestek (2017), while noting that that material applies solely to code under United States copyright — notwithstanding many of the background arguments are readily transferable. Indeed like data, code revisions are usually small and accretive. Point 3 is important because data and metadata are usually separately and differently licensed. Point 4 will cite Hitzler (2021).

Please rely below (or alternatively direct message me) if you have thoughts and suggestions, R

References

Chestek, Pamela S (2017). “A theory of joint authorship for free and open source software projects”. Colorado Technology Law Journal. 16: 285–326. Open access.

European Parliament (June 2021). “2 a Europe fit for the digital age: Data Act”. Legislative Train. Open access.

Hitzler, Pascal (February 2021). “A review of the semantic web field”. Communications of the ACM. 64 (2): 76–83. ISSN 0001-0782. doi:10.1145/3397512. PDF download available.

Short update:  I have begun preparing the second submission. But I have not the available input time nor the elapsed time to undertake consultation within this community. Hence, I will put out the second submission in my name alone while perhaps posting a final draft to the mailing list for general comment. R

Submission of September 2021

Here is a follow‑up submission providing ideas and information that came to light since the first submission (listed above) was tendered. Please see this PDF file:

The European Commission also provided a lengthy questionnaire. My responses were recorded in a 29 page PDF:

I stressed the following points:

  • the public interest is best served by treating non‑personal energy system data as a public good wherever possible
  • historical market clearance information was cited as an example of highly restrictive public disclosure
  • the legal status of datasets and databases under joint authorship needs clarifying
  • open and freely reusable data would arguably benefit from explicit statutory support
  • complexity is rapidly increasing within both the energy and information domains and the intersection is known as “digitalization”
  • the net‑zero by 2050 goal will be severely hampered without vastly better access to energy system data
  • that this submission should be read in conjunction with the earlier submission

The request for explicit statutory support for open data is not one I have heard aired before. Indeed it would be helpful if public intellectual property were properly covered in legislation and not reliant on public licenses often drafted under United States legal traditions.

Reading between the lines on my part, the European Commission appears to be focusing on the following themes — among others of course:

  • the 96/9/EC database directive is likely to be heavily modified or even perhaps (and hopefully) repealed
  • there will be greater statutory provision for business‑to‑government (B2G) information flows
  • some of that material will be aggregated and/or anonymized as necessary and made public
  • the law on trade secrets will likely be modified to better enable these B2G data flows

For the record, the European Commission applies the following breakdown:

  • business‑to‑government data sharing for the public interest
  • business‑to‑business data sharing
  • tools for data sharing, smart contracts
  • clarifying rights on non‑personal internet‑of‑things data stemming from professional use
  • improving portability for business users of cloud services
  • complementing the portability right under article 20 of the GDPR
  • intellectual property rights, including the protection of databases
  • safeguards for non‑personal data in international contexts

Although this particular submission was under the name of a single author, it was circulated on the openmod mailing list for a short time and three individuals offered valuable comments.

References

Morrison, Robbie (3 September 2021). Submission on a proposed Data Act for the European Union from the perspective of energy system analysis / 2 — Release 02. doi:10.5281/zenodo.5471077. Berlin, Germany. Creative Commons CC‑BY‑4.0 license.

Text and images licensed under CC BY 4.0Data licensed under CC0 1.0Code licensed under MITSite terms of serviceOpenmod mailing listOpenmod wiki.