Overall, the Council’s mandate does not substantially alter the Commission proposal and does not significantly differ from the European Parliament’s position. As argued in this previous blogpost, the Parliament’s text was insufficient in setting the necessary stepping stones to build a fair data society based on collective data stewardship. Equally, the Council’s position does little in contributing to this vision. As such, the Council’s negotiation mandate still constitutes a missed opportunity for making the DGA a more meaningful intervention.
Nonetheless, the Council’s position incorporates two important changes which deserve attention. These concern the relationship between the DGA and the GDPR and the role of Open Access Commons resources in the proposal.
In the original proposal, one of the most contested points was the relationship between the DGA and GDPR in creating overlapping standards for personal data processing. As previously discussed in this policy brief, the potential inclusion of personal data in the DGA scope is problematic, given the GDPR framing so closely tied to fundamental rights and the DGA’s overall ambition to maximize data sharing. In particular, the DGA was initially characterized by an overall lack of consistency with GDPR terminology that potentially questioned its primacy in data protection.
The negotiating mandates approved by Council and Parliament are aligned on this point. Both texts consistently incorporate GDPR terminology as the concepts of consent, data subject, data holder, data user, data re-user and data processing are now specified. In addition, both positions emphasize its primacy in data protection, thus closing doors for dangerous interpretations that could give rise to alternative legal bases for data processing.
However, two elements in the Council’s position remain problematic. These are the introduction of a new concept of “permission” and an amended version of the definition of “data sharing”. Both terms deal with personal data processing and data subjects’ rights and thus create confusion with related GDPR provisions since they are interchangeably used with “consent”. During the trilogue negotiations, these Council additions should be rejected so that they do not give rise to potential double standards in data processing. On this point, the EP position is better aligned with the GDPR and should be used as a basis for the final compromise.
Both the EP and Council texts contain amendments concerning the role of Open Access Common resources. In response to the initial DGA consultation, we submitted feedback to the Commission where we highlighted the fundamental role played by these resources in the overall data ecosystem. To safeguard this key function, it is important that Open Access Commons resources are not negatively affected by the DGA.
The Parliament’s text contains an addition in recital 37a stipulating that the provisions established by the DGA are without prejudice to the ability of non-profit organizations to make data and content available to the public under open licenses. This amendment would clearly signal that Open Access Common resources fall outside the scope of the DGA. As such, it would recognize their key role in today’s digital ecosystem.
The Council text includes a new definition of data intermediaries stipulating that only for-profit services fall into this category. If included in the final compromise, this addition would ensure that existing Open Access Resources, like Wikipedia or Europeana – which are generally recognized as not-for-profit – are not subject to the requirements that the DGA will impose on intermediaries.
Taken together, these two modifications would ensure that Open Access Commons resources are not subject to additional requirements that could endanger their modus operandi. To safeguard their position in the DGA and increase legal clarity, both Council’s and Parliament’s contributions therefore need to be included in the final text.
With the Council’s negotiating mandate adopted, the next step will be the trilogue negotiations between Council, Parliament and the Commission. Given the lack of fundamental divergences between the three institutions, it seems possible that a final compromise text will emerge before the end of the year.