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Law 37/2007 Of 16 November On The Re-Use Of Public Sector Information.

Original Language Title: Ley 37/2007, de 16 de noviembre, sobre reutilización de la información del sector público.

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TEXT

JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following law.

PREAMBLE

The information generated from the public authorities, with the potential that grants the development of the information society, has a great interest for the companies in operating in their fields of action, contribute to economic growth and job creation, and to citizens as an element of transparency and a guide to democratic participation. By collecting both aspirations, Directive 2003 /98/EC of 17 November 2003 of the European Parliament and of the Council on the re-use of public sector information was adopted in order to exploit the potential for information the public sector and to overcome the barriers of a fragmented European market by establishing uniform criteria, based on a level playing field, proportionate and non-discriminatory for the treatment of information likely to be reused by natural or legal persons.

The various public sector administrations and agencies collect, produce, reproduce and disseminate documents to carry out the public service mission they are entrusted with. As stated in Directive 2003 /98/EC, the use of such documents for other reasons, whether for commercial or non-commercial purposes, constitutes a re-use. On the one hand, the aim is to harmonise the exploitation of information in the public sector, in particular the information on digital support collected by its various bodies concerning many areas of interest such as social information, economic, legal, geographical, meteorological, tourism, business, patents and education, etc., in order to facilitate the creation of information products and services based on public sector documents, and to strengthen the effectiveness of use the cross-border nature of these documents by citizens and private companies so that they can offer added value information products and services. On the other hand, the publicity of all the free documents held by the public sector concerning not only political but also judicial, economic and administrative procedures is an essential instrument. for the development of the right to knowledge, which is a basic principle of democracy.

These objectives are those pursued by this law, which through the incorporation into our legal order of Directive 2003 /98/EC and, taking as a starting point the different treatment that the administrations and public sector bodies have granted the exploitation of the information, has a minimum general framework for the conditions for the re-use of public sector documents which takes into account the different modalities that can be adopted and which dimanan of the heterogeneity of the information itself. As a result, it is envisaged that public sector administrations and bodies will decide to authorise or not to reuse documents or categories of documents for which they are held for commercial or non-commercial purposes. It is also intended to promote the making available of documents by electronic means, promoting the development of the information society.

The law has specific outlines that delimit the general access regime provided for in Article 105 (b) of the Spanish Constitution and in its legislative development, in essence represented by Law 30/1992, of 26 of November, the Legal Regime of Public Administrations and the Common Administrative Procedure. In this sense it is necessary to specify that the system of access to administrative documents enshrined in our legal order is not changed, but that an added value is added to the right of access, contemplating the regulatory framework. (a) basic for the exploitation of information held by the public sector, in a framework of free competition, regulating the minimum conditions to which a second level of processing of information is to be applied from the public instances.

In Title I of the law the subjective scope of application is provided, which extends to the administrations and agencies of the public sector in the sense defined in Article 2, in line with the delimitation carried out in the Public sector procurement rules. From the perspective of its objective application, the law provides for a generic definition of the term document, in line with the evolution of the information society and which encompasses all forms of representation of acts, facts or information, and any collection of the same, regardless of the support (written on paper, stored in electronic form or as sound, visual or audiovisual recording) retained by public sector administrations and bodies, and includes a negative delimitation of the scope of application, listing those documents or categories of documents which are not affected by it, taking into account various criteria. It should be noted at this point that the law does not apply to documents which are subject to intellectual or industrial property rights (such as patents, designs and trademarks) in particular by third parties. For the purposes of this law, copyright and related rights, including the forms of protection sui generis, are to be understood by intellectual property rights. In this respect, the law does not affect the existence of intellectual property rights of the public sector administrations and bodies, nor does it restrict the exercise of those rights outside the limits established in its law. articulated. The obligations imposed by this law should only apply in so far as they are compatible with the provisions of the international agreements on the protection of intellectual property rights, in particular the Berne Convention for the protection of literary and artistic works (Berne Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). However, public authorities must exercise their copyright in a way that facilitates reuse.

Title II provides for the basic aspects of the legal regime for reuse, indicating that public sector administrations and bodies may choose to allow reuse without specific conditions or, through the issue of a licence, which imposes on its holder a number of conditions for re-use which, in any event, must be clear, fair and transparent, non-discriminatory for comparable categories of reuse and to meet the principle of free movement competence and public service.

To do this, the use of type-licenses that can be made available by electronic means is revealed as a key element in this regard. Moreover, it is anticipated that the various administrations and bodies will disseminate which documentation is likely to be reused by the creation of lists and indexes accessible online of the available documents, with the aim of promoting and facilitate requests for reuse. In order to increase the possibilities for reuse, public sector administrations and agencies should seek to provide documents by electronic means in pre-existing formats or languages.

The reuse regime guarantees full respect for the principles that consent to the protection of personal data, in the terms established in the Organic Law 15/1999, of December 13, of the Protection of Data of Character personnel and their development regulations.

On the other hand, public sector administrations and agencies must adapt to the competition rules, avoiding exclusive agreements. However, the law provides for an exception to this principle when, with a view to the provision of a service of general economic interest, it may be necessary to grant an exclusive right to the re-use of certain documents in the sector public.

Likewise, the law provides for the principles applicable to those cases in which Administrations and agencies require economic consideration to facilitate the reuse of documents for commercial purposes, the amount of which it must be reasonable and cost-oriented, without the revenue from exceeding the total costs of collecting, producing, reproducing and disseminating the documents.

In Title II some aspects of the re-use of information are specified, providing for the possible conditions to be used for reuse, which could be referred to questions such as the correct use of documents, the guarantee that the documents will not be modified and the indication of the source. The minimum content to receive the licenses is also indicated.

In Title III, the law establishes the procedure to be able to arbitrate requests for reuse, in which time-limits of resolution are particularly relevant, which is essential for the dynamic content of the information, whose economic value depends on its immediate provision and on a regular update. It is also ensured that in the resolutions adopted, the remedies available to the applicants are indicated in order to challenge the decisions affecting them.

Finally, the General Administration of the State establishes a sanctioning regime connected with the misuse that is entrusted to the information whose reuse has been authorized.

This Law is of a basic law under the provisions of Article 149.1.18. of the Constitution. Article 11 and paragraphs 1 (second and third paragraphs), 3 and 8 of Article 10 are exempted.

The report of the Spanish Data Protection Agency has been collected in the drafting of the law.

TITLE I

General provisions

Article 1. Object.

This law aims at the basic regulation of the legal regime applicable to the re-use of documents produced or guarded by public sector administrations and agencies.

The application of this law shall be without prejudice to the rules applicable to the right of access to documents and specialties provided for in their regulatory regulations.

Article 2. Application subjective scope.

It is understood by public sector administrations and agencies for the purposes of this law:

(a) The General Administration of the State, the Administrations of the Autonomous Communities and the Entities that make up the Local Administration.

b) The managing entities and the common services of social security.

(c) Autonomous Bodies, State Agencies and any public law entities which, with functional independence or with special autonomy recognised by law, have the responsibility of regulating or controlling external character on a particular sector or activity.

(d) entities governed by public law with their own legal personality, linked or dependent on any of the public administrations:

1. º That have been created to specifically satisfy needs of general interest that do not have an industrial or commercial character.

2. No such entities whose activity is largely financed by public administrations or other public law entities, or whose management is subject to control by the public authorities, or whose administrative, management or supervisory bodies are composed of members of which more than half are appointed by public administrations and other entities governed by public law.

e) The Consorcios endowed with their own legal personality as referred to in Article 6 (5) of Law 30/1992, of 26 November, of the Legal Regime of Public Administrations and of the Administrative Procedure Common, and local regime legislation.

f) Public sector foundations provided for in the legislation on foundations.

(g) Associations made up of the administrations, bodies and entities referred to in the preceding letters.

Article 3. Objective scope of application.

1. The use of documents held by public sector authorities and bodies, by natural or legal persons, for commercial or non-commercial purposes, shall be understood as reuse, provided that such use does not constitute an activity public administrative. The exchange of documents between administrations and public sector bodies in the exercise of the public functions assigned to them is excluded from this concept.

2. This law shall apply to documents produced or protected by public sector administrations and bodies, the re-use of which is authorised by the public sector.

All information is understood by any information that is its material or electronic support as well as its form of graphic, sound or image used. For this purpose, software which is protected by the specific legislation applicable to them shall not be considered as documents.

3. This law shall not apply to the following documents in the public sector administrations and bodies provided for in Article 2:

(a) Documents on which there are prohibitions or limitations on the right of access under the provisions of Article 37 of Law No 30/1992 of 26 November 1992 on the Legal Regime of the General Administration and the Common Administrative Procedure and other rules governing the right of access or registration with a specific character.

b) Documents concerning national defence, State security, protection of public security, as well as those subject to statistical confidentiality and commercial confidentiality, and in general documents related to actions submitted by a standard to the duty of reservation, secrecy or confidentiality.

(c) Documents for which access is required to be the holder of a legitimate right or interest.

(d) the documents held by public sector administrations and bodies for purposes other than the public service functions assigned to them in accordance with the rules in force.

e) Documents on which intellectual or industrial property rights exist on the part of third parties. However, this law does not affect the existence of intellectual property rights of the public sector authorities and bodies or their possession by them, nor does it restrict the exercise of those rights outside the established limits. by this law. The exercise of the intellectual property rights of public sector administrations and bodies shall be carried out in such a way as to facilitate their re-use.

(f) Documents held by entities managing the essential services of sound and television broadcasting and their subsidiaries.

g) Documents held by educational and research institutions such as schools, universities, archives, libraries and research centres, including organisations set up for the transfer of the results of the investigation.

h) documents preserved by cultural institutions such as museums, libraries, historical archives, orchestras, operas, ballets and theaters.

4. The provisions of this law shall not restrict the most favourable provisions for access or reuse to be laid down in the sectoral laws.

TITLE II

Legal framework for reuse

Article 4. Administrative regime for reuse.

1. The documents of the public sector administrations and agencies will be reusable in the terms provided for in this law.

2. Public sector administrations and bodies may choose to ensure that the various documents in their possession are reusable in accordance with some or some of the following:

(a) Reuse of documents made available to the public without conditions.

b) Reuse of documents made available to the public subject to conditions laid down in type-licensees.

(c) Reuse of documents upon request, in accordance with the procedure laid down in Article 10 or, where applicable, in the autonomic regulations, and may incorporate in these circumstances the conditions laid down in a licence.

3. The conditions set out in the licences shall comply with the following criteria:

a) They must be clear, fair and transparent.

b) They must not restrict the possibilities for reuse or limit competition.

c) They must not be discriminatory for comparable categories of reuse.

4. Public sector administrations and agencies may provide type-licenses for the re-use of documents, which should be available in digital format and be processed electronically.

5. Public sector administrations and agencies will provide electronically accessible mechanisms that make it possible to search for documents available for reuse, creating documentary management systems that enable citizens to adequate information retrieval, such as listings, databases, or indexes and portals that link to decentralized listings.

6. The re-use of documents containing personal data shall be governed by the provisions of the Organic Law 15/1999 of 13 December on the protection of personal data.

Article 5. Formats available for reuse.

1. Public sector administrations and agencies shall promote the making available of documents for reuse as well as the processing of requests for reuse by electronic means and by means of a platform Multi-channel when this is compatible with the technical means available to you.

2. Public sector administrations and bodies shall provide their documents in any format or language in which they are previously available, by providing them with electronic means as provided for in the previous paragraph. This does not imply the obligation on the part of the Administrations and bodies to provide extracts of documents where this involves a disproportionate effort, to create documents, to adapt them or to maintain the production of a specific document for satisfy a request.

3. In accordance with the provisions of Law 51/2003 of 2 December 2003 on equal opportunities, non-discrimination and universal accessibility for persons with disabilities, the electronic means of making available the documents to which they are refers to paragraph 1 of this Article shall be accessible to persons with disabilities, in accordance with the existing technical standards in this field.

Also, public sector administrations and agencies will, as far as possible, take appropriate measures to make it easier for those documents intended for people with disabilities to be available in formats that take into account the possibilities of reuse by such persons.

This obligation shall not apply in cases where such adequacy does not constitute a reasonable adjustment, as provided for in Article 7 of Law 51/2003.

Article 6. Prohibition of exclusive rights.

1. The re-use of documents will be open to all potential market players, even if one or more of the agents already exploit products with added value based on these documents. Contracts or other agreements between public sector bodies which retain documents and third parties shall not grant exclusive rights.

2. The granting of exclusive rights of public sector bodies in favour of third parties shall not be admissible unless such exclusive rights are necessary for the provision of a service of public interest. In such a case, the administration or the body of the public sector concerned shall be obliged to carry out a periodic review, and in any event, every three years, of the permanence of the ground which justified the granting of the said right. exclusive. These exclusive agreements must be transparent and public.

Article 7. Economic consideration.

1. A fee or a public price may be charged for the supply of documents for re-use under the conditions laid down in Law 8/1989 of 13 April 1989 on Public Prices and Prices or, where applicable, the rules applicable to the use of such documents. regional or local authority, taking into account for its determination these effects, inter alia, the existence of public access rates or prices.

2. The amounts of the public fees or charges to be established shall be quantified in accordance with Articles 19 and 25 of Law 8/1989 of 13 April, or in the rules applicable to the regional or local authorities, for to cover at least the costs of the service or activity, including those relating to the collection, production, reproduction and dissemination of such costs.

3. If a public sector administration or body reuses the documents as a basis for commercial activities outside its own functions, it shall apply to the delivery of documents for such activities. the same public charges or prices and conditions that apply to other users.

4. Differentiated rates or public prices may be applied for reuse for commercial or non-commercial purposes.

5. Public sector administrations and agencies shall make available to the public the list of public charges and prices that apply to requests for reuse, and the assumptions in which no payment is made, by means of electronic means provided that it is compatible with its technical capabilities. In addition, the relevant body shall, upon request, indicate the basis of calculation used to determine the public charges or prices and the factors taken into account in the calculation of the rates or public prices for atypical cases.

Article 8. Conditions for reuse.

The re-use of the information of the Administrations and of the public sector bodies referred to in Article 2 of this Law may be subject, inter alia, to the following general conditions:

a) That the content of the information is not altered.

b) That the sense of information is not denatured.

c) To quote the source.

d) That the date of the last update be mentioned.

Article 9. Licenses.

In cases where a licence is granted, the licence shall at least reflect the information relating to the specific, commercial or non-commercial purpose for which the re-use is granted, the duration of the licence, the obligations of the beneficiary and of the granting body, the responsibilities of use and financial modalities, indicating the free character or, where applicable, the applicable fee or public price.

TITLE III

Procedure and sanctioning regime

Article 10. Procedure for processing reuse requests.

1. Requests for the re-use of administrative documents shall be addressed to the competent body, which shall be understood by the body in whose possession the documents for which the re-use is sought. Applications shall be submitted by natural or legal persons seeking to reuse the documents in accordance with the provisions of this law.

However, when the body to which the request has been addressed does not have the required information but has knowledge of the Administration or body that owns it, it will forward the application to the agency as soon as possible. to the applicant.

Where this is not possible, it shall inform the applicant directly of the public sector administration or body to which, according to its knowledge, it must be directed to request such information.

2. The application shall reflect the content provided for in Article 70.1 of Law 30/1992, identifying the document or documents which may be reused and specifying the purposes, commercial or non-commercial, of the reuse. However, where an application is made in an imprecise manner, the competent authority shall ask the applicant to specify it and shall state expressly that, if it does not do so, it shall be given the withdrawal of its application in accordance with the terms laid down in the Article 71 of Law 30/1992.

The applicant must make his or her request to be completed within ten days of the day following receipt of the request. For these purposes, the competent authority shall assist the applicant in determining the content of the information requested.

The calculation of the time limit for resolving the request for information shall be deemed to be suspended for the time between the notification of the request and its actual compliance by the addressee or, failing that, in the course of the procedure. of the period granted, informing the applicant of the suspension of the deadline to be resolved.

3. The competent body shall decide on requests for reuse within a maximum of 20 days from the receipt of the application in the register of the body responsible for processing, as a general rule. Where the volume and complexity of the information requested proves impossible to meet the deadline, the time limit for resolution may be extended by a further 20 days. In this case, the applicant shall be informed, within a maximum of 10 days, of any extension of the time limit, as well as of the reasons justifying it.

4. A decision which is of an estimated nature may authorise the re-use of documents without conditions or shall entail the granting of the appropriate licence for reuse under the relevant conditions imposed by the itself. In any event, the final judgment shall be made available to the document within the same time limit as provided for in the preceding paragraph.

5. If the decision is totally or partially denied the re-use requested, the applicant shall be notified, giving the reasons for such refusal within the time limits referred to in paragraph 3, reasons which shall be based on one of the provisions of this law or in the legal order in force.

6. In the event that the judgment of the court is founded on the existence of intellectual or industrial property rights on the part of third parties, the competent body must include a reference to the natural or legal person who holds the rights. where it is known, or alternatively to the transferor from which the body has obtained the documents.

7. In any event, the decisions taken must contain a reference to the means of appeal to which the applicant may, as provided for in Article 58.2 of Law No 30/1992 of 26 November 1992, make use of the legal provisions of the Public administrations and the Common Administrative Procedure.

8. If, within the time limit set for resolving and notifying no express resolution, the applicant may understand his/her application to be dismissed.

Article 11. Sanctioning regime.

1. In the field of the General Administration of the State, serious violations of the provisions of this law shall be considered:

a) The denaturing of the sense of information for which a license has been granted;

b) The very serious alteration of the content of the information for which a license has been granted.

2. Serious infringements shall be considered:

a) Re-use of documentation without having obtained the appropriate license in cases where it is required;

b) Reusing information for a purpose other than the one that was granted;

c) The serious alteration of the content of the information for which a license has been granted;

(d) The serious non-compliance with other conditions imposed on the relevant licence or regulatory regulations.

3. Minor infringements shall be considered:

a) The lack of mention of the date of the last update of the information;

b) The slight alteration of the content of the information for which a license has been granted;

c) The absence of an appointment from the source in accordance with the provisions of Article 8 of this Law;

d) The minor non-compliance with other conditions imposed on the relevant licence or regulatory regulations.

4. For the commission of the infringements set out in this article, the following sanctions shall be imposed:

a) A penalty penalty of 50,001 to 100,000 euros for the commission of very serious infractions;

(b) A fine of EUR 10,001 to EUR 50 000 for the commission of serious infringements;

c) Penalty penalty of 1,000 to 10,000 euros. For the commission of minor infractions.

For the commission of very serious and serious infringements collected, in addition to the penalties provided for in points (a) and (b), it may be punishable by the prohibition of the reuse of documents under licence for a period of time. between 1 and 5 years and with the revocation of the license granted.

5. The penalties shall be graduated on the basis of the nature of the information being reused, the volume of such information, the benefits obtained, the degree of intentionality, the damage and damage caused, in particular those relating to the personal data protection, recidivism and any other circumstance that is relevant to determine the degree of antijurity and guilt present in the concrete infringing action.

6. The sanctioning authority shall be exercised, in all cases not provided for in this law, in accordance with the provisions of Title IX of Law 30/1992 of 26 November 1992 on the Legal Regime of Public Administrations and the Procedure Joint Administrative. The exercise shall be carried out by the competent bodies which are assigned to it by reason of the matter.

7. The sanctioning regime provided for in this law is without prejudice to the civil or criminal liability in which it may be incurred, which shall be made effective in accordance with the relevant legal rules.

Additional disposition first. Plans and programs.

The Government, on the proposal of the competent ministries, will develop plans and programs of actions aimed at facilitating the reuse of public sector information in order to promote the growth of the sector digital content, with the possibility to establish with the rest of the public administrations the mechanisms of collaboration that are considered relevant for the achievement of this objective.

Additional provision second. Application to other organisms.

1. This law shall apply to documents held by bodies and institutions other than those referred to in Article 2, to which, in accordance with the terms laid down in their regulatory rules, it is applicable in their Law No 30/1992 of 26 November 1992 on the Legal Regime of Public Administrations and the Common Administrative Procedure.

2. The provisions of this law shall apply to judgments and judgments, without prejudice to the provisions of Article 107.10 of the Organic Law 6/1985 of 1 July of the Judicial Branch and its specific development.

Single transient arrangement. Transitional arrangements applicable to exclusive agreements.

Existing exclusive agreements to which the derogation provided for in Article 6 does not apply shall be concluded when the contract expires and, in any event, no later than 31 December 2008.

Final disposition first. Constitutional foundation.

This law has the character of basic legislation under the provisions of Article 149.1.18. Article 11 and paragraphs 1 (second and third paragraphs), 3 and 8 of Article 10 are exempted.

Final disposition second. Regulatory development.

The Government, within the scope of its powers, will dictate how many provisions are necessary for the implementation and development of the law.

Final disposition third. Entry into force.

This Law will enter into force two months after its publication in the "Official State Gazette".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this law.

Madrid, 16 November 2007.

JOHN CARLOS R.

The President of the Government,

JOSE LUIS RODRIGUEZ ZAPATERO