Following a year and half long market investigation, the OFT published on 7 December 2006 its report on the commercial use of public sector information (PSI). The report makes a number of recommendations aimed at increasing "fair" access to PSI, particularly where the public sector body holding the information is itself active in providing value added products to end users.
Examples of PSI include information collected and held by public sector bodies such as Land and other public registers, Ordnance Survey, the Met Office, and Companies House, generally pursuant to their statutory functions. The underlying raw information can be used by businesses as part of their internal decision-making, or where they wish to provide value-added products or services, such as in-car satellite navigation systems or weather reports to mobile phones. The OFT notes that many of the products/services developed by businesses will involve adding value to the original PSI and in almost all cases the public sector body will be the only source for the original information- in addition, the public sector body will in many cases itself be in competition with these businesses in providing value added products to end users.
The OFT's study found that raw information is not as easily available as it should be, licensing arrangements can be overly restrictive, prices are not always linked to costs and public sector bodies may be charging higher prices to competing businesses and giving them less attractive terms than their own value-added operations. The study also found that much of the legislation and guidance which aims to ensure access to information is provided on an equal basis, lacks clarity and is inadequately monitored by a regulator (OPSI) with weak enforcement powers.
While the report stops short of recommending that public sector bodies should provide access to raw information in all cases (which would be legally difficult in the light of international IP law) or that they should be prevented from engaging in "refined information activities", the OFT makes a number of recommendations. In particular, a public sector body should:
- make as much PSI available as possible for commercial use/re-use;
- ensure that businesses have access to PSI at the earliest point
that is useful to them;
- provide access to information where it is the only supplier on an equal basis to all businesses and the body itself; and
- use proportionate cost-related pricing and account separately for its monopoly activities and its value-added activities so that it can demonstrate it is providing and pricing information fairly and in a non-discriminatory manner.
The OFT has committed itself to reviewing the sector within 2/3 years, and to the extent its recommendations are not being implemented and there is continuing non-compliance by public sector bodies with the regulatory framework, the OFT states that it will consider what further measures (including primary legislation) may be necessary.
Given the OFT considers that more competition in PSI could benefit the UK economy by around £1 billion a year, as well as the general move towards promoting the widest possible access to public sector information (e.g. the FOIA), and given the possible resource to UK/EC competition law to obtain information, it can be expected that public sector bodies holding PSI will remain under close scrutiny.