LEGAL ASPECTS OF GI ACCESS IN CZECH REPUBLIC PUBLIC ADMINISTRATION (WITH RESPECT TO EU PROJECTS)

Květoslava Bratova¹, Milan Konecny^2
1 Ministry of Agricultural, Land Office, Tachov, Czech Republic
² Institute of Geography, Faculty of Science, Masaryk University in Brno, Czech Republic

ABSTRACT

The paper deals with an analysis of the existence and functionality of legal rules in the CR for processing, use, providing, access and integration of geographical data and information into other processes, occurring in an information, or knowledge based society. The results of the analysis are then compared with legislative approaches in EU countries, especially those which are formulated in INSPIRE. Components of legal process are described and examples from agricultural area added.

Key words: geographic (spatial) information, GIS, geographic information infrastructure, public administration, information policy, public services, legislative power, protection of intellectual property, free access to public sector information, the right for environmental information, protection of privacy, common agricultural policy, Land parcel information system, Integrated administration and control system.

INTRODUCTION

Since the 1980s, there has been a significant shift in possibilities of processing and utilization of geographic information (GI) influenced by the development of digital information and telecommunication technologies (ICT). It has been estimated, that up to 80% of human decisions are influenced by spatial aspect. Better accessibility of information led both increasing utilization of GIS technology as well as attempts to create the so-called geographic (spatial) data (information) infrastructures (GII). Access to information is also made easier by development of the Internet and mobile communications. This development also has positive impact on public administration, especially in quicker and more complex gathering of information on space and in agriculture, environmental protection, transport, safety, and regional planning. ICTs make information more accessible to the public, which makes the administration and decision-making processes more democratic and controlled.

EUROPEAN APPROACHES TO GI

The European Union has developed many approaches and visions and defined several specific tasks, which should help to provide citizens the right for: life in a healthy environment, information, just economic competition, privacy, and support sustainable development, economic development and scientific research.

Due to a huge potential of possibilities related to utilization of GI, this area is becoming closely followed by an increasing number of subjects, including specialists, politicians, representatives of commercial sector, public administration, and the general public. Continuously, there are new requirements on utilization of GI specified, and new strategies of development are formulated depending on tasks that are to be solved with their use. Attention is paid to pinpointing critical spots and limiting factors, as well as methods of preventing or minimizing these barriers and removing their impact.

One of the initiatives dealing with possibilities and barriers in GI utilization was the GINIE project (Geographic Information Network in Europe) that took place in 2001-2003 and especially the legislative initiative INSPIRE and the related GMES project.

The Czech Republic took part and is taking part in all professional events related to creation of INSPIRE and also presented results of efforts of Czech specialists in all researches and comparison studies. Coordinators of Czech participation are the Ministry of Environment and the Ministry of Informatics of the Czech Republic in cooperation with CAGI (the Czech Association for Geoinformation).

Preparation of legislative initiative INSPIRE has resulted into the proposal of DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an infrastructure for spatial information in the Community (INSPIRE) no. 2004/0175 (COD), presented in Brussels on 23 July 2004. The proposal of the directive is based on art. 175, sec. 1, of the Contract on EU. (GI concerned by the proposal are necessary for support of creating, enforcement and evaluation of environment protection policies with regards to provision of high level of environmental protection.)

The area of environmental protection was selected because:

• this area ranks among the most important priorities of public administration on European, national, and regional levels,

• in order to satisfy one of the basic human rights - the right for information about environment - it is necessary to provide a large amount of spatial information from different sources, often without regards to national or other administration borders, in a relatively short period of time,

• the environment influences life of every person; therefore, participation of the general public should be provided in decision-making in environment related issues,

• from a legislative point of view, the area is broadly elaborated in the EU,

• a lot of data is available on local, national, and international levels,

• there are several projects, which already provide long-term international cooperation (e.g. UNEP-Infoterra: The Global Environmental Information Exchange Network; GMES: Global Monitoring for Environment and Security; CLC: Corine Land Cover of the EEA and others).

Main goals of the INSPIRE initiative are:

• provision of access to harmonized spatial data (necessary for fulfilling tasks not only on the EU level),

• improvement of spatial data quality,

• provision of data completeness,

• mutual interconnection of data.

Provision, updating, and accessibility of data documentation (metadata) is also an important task closely related to data accessibility.

The European GII should be closely related to national and regional infrastructures, and - at the same time - consider knowledge gained from global initiatives, such as the GSDI (Global Spatial Data Infrastructure) and Global Mapping.

ACCESS TO GEOINFORMATION IN THE CZECH REPUBLIC

In the Czech Republic, creation of individual partial elements of geoinformation structure has a long tradition (e.g. in the form of public mapping works, the Base of Geographic Data - ZABAGED, etc.). However, it is necessary to improve coordination of individual activities, provide completeness, updating, and better accessibility of data, remove obstacles in data utilization and provide data security.

Solutions to the above mentioned problems are recently helped by influence of experience gained from participation in international projects as well as implementation of European legislative.

On the level of central public authorities, the Ministry of Informatics of the Czech Republic (as the main guarantee of public information policy) plays the main role in implementation of new information technologies and enforcement of the so-called e-government. The ministry also coordinates activities of all other subjects taking part in fulfilling tasks of public information policy.

In the GI area, the main role on the national level is played by the Czech Office for Surveying, Mapping and Cadastre (ČUZK). It is responsible for most public mapping works and the Base of Geographic Data (ZABAGED) (with the exception of a group of public mapping works administered by the Ministry of Defense). Currently, we still look for the most suitable model of effective and harmonized cooperation among all concerned subjects with regards to cooperation with the EU related to the INSPIRE initiative.

Very important role in this area is also played by the NEMOFORUM association, the main actor in preparation of the NGII (National Geoinformation Infrastructure) program. It is an association of representatives of central public administration authorities, regional public administration (represented by the Association of Municipalities of the Czech Republic), professional authorities, and the professional public. Such a varied composition allows NEMOFORUM to see GI-related problems in the broadest view.

Another active subject in the area of GI (both on national and international levels) is the Czech Association for Geoinformation (CAGI) - member of the European umbrella organization for geographic information (EUROGI). CAGI is also the administrator of MIDAS - database of descriptive information providing free GI metadata in a structure complying with European standards.

In the Czech Republic, the NGII program is a part of the action plan for realization of public information policy. It has been developed mainly by the NEMOFORUM association, CAGI, and representatives of private sector. The program document of NGII was discussed and supported by the Government Council for Public Information Policy, which gained it necessary political support, but its implementation depends on funding from public budget which is so far lower than expected.

LEGISLATIVE ASPECTS OF ACCESS TO GEOGRAPHIC INFORMATION

Demand for geographic data is significantly increasing. It is caused by realization of information and knowledge-based society requirements. GI is also a valuable goods from the commercial point of view. Majority of GI is still created by public administration, but the role of private subjects is increasing. However, present forms of cooperation do not permit effective utilization of all possibilities provided by GIS. There is no balance between data creators on one side and data users on the other side. Innovation of the approach to cooperation requires enhancement and acceleration of the legislative process that has to unify practices and provide suitable legal environment for creation, updating, sharing, accessing and utilization of GI. In this process, strong political support and especially political consensus are necessary pre-requisites.

Creation of GII on a European level (or even on the global level) is a very complex, but solvable task. There are many limits to possible solutions arising mainly from cultural, economic, social, legal, ethical, and technical differences. In order to succeed, it is therefore necessary to approximate binding international regulations on national levels, but also to reach agreement in recommended approaches and trends.

When creating a GII on any level, from a legislative point of view, it is necessary to consider especially the following basic areas:

• Protection of intellectual property.

• Free access to public sector information.

• The right for environmental information.

• Protection of privacy.

Protection of intellectual property

Protection of intellectual property is contained in constitutional laws. It is of significant importance for economic and cultural development of society.

Up to the 1990s, cartographic works were categorized among literary and artistic works. Act no. 35/1965 Coll. on literary, scientific and artistic works (authorship law), valid until 1 June 1990 did not anticipate any other form of geographic information; it was only Act no. 121/2000 Coll. on law of authorship, rights related to law of authorship, and amendments of certain regulations (authorship law) that deals with protection of GI also in its presently most frequent form - databases. Costs of creating databases include significant human, technical, and financial resources; however, copying or accessing requires only a small fraction of costs necessary for their creation. Therefore, databases require consistent protection against misuse and clear rules for provision and utilization.

Non-uniform approach to protection of intellectual property can have significant economic and social impact, because it can obstruct free movement of goods and services, disturb just economic competition, and cause discrimination of a certain group of creators or users.

In order to minimize the above mentioned negative impacts, individual countries sign mutual agreements. WIPO Copyright Treaty signed in Geneve on 20 December 1996 is an example of such agreement. (It is valid for the Czech Republic since 6 March 2002.) Within the European Union, the unifying process is realized in the form of regulations that bind all member states to adopt a uniform approach to protection of intellectual property and databases. Examples of the above mentioned are Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, or Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

The first international clear formulation of intellectual property is contained in the Bern Convention of 9 September 1886. Czechoslovakia has adopted it in 1921. Hereby, it has committed itself to provide protection of works listed in the convention including cartographic products and information in general. The Bern Convention forms a basic frame of intellectual property protection on the international scale; other national regulations of countries, which adopted the convention, and also EU regulations, usually refer to it. One of the acts, which has the character of a special agreement supplementing the Bern Convention by expanding intellectual property, but not contradicting the convention, is the above mentioned WIPO Copyright Treaty. Latest complete wording of the Bern Convention including all revisions and amendments can be found at www.wipo.int.)

Free access to public sector information

In the Czech Republic, the right to access public sector information freely is also provided by constitutional law. By its enforcement, citizens have the possibility to watch over performance of public administration paid from the state budget. Information should be provided without unsubstantiated delay, free of charge or for a fee amounting only to direct costs of making a copy, etc. The fee should under no circumstances have the character of an obstruction - it must not discourage citizens from requiring the information. Only information specified by law (such as security information) are not provided.

Another topic closely related to free access to public sector information is re-use of such information, which means utilization of the information for other purposes than for which they were collected, for example for business activities.

On the European level, the issue of re-use of public sector information is treated by Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, which attempts to harmonize approaches of individual member states. Its goal is to provide just, reasonable, and non-discriminatory conditions for re-use of information, which are designed to be used in this manner. The directive does not specify what type of information should be provided - that is to be decided by individual states.

There is no such legal regulation in the Czech Republic. Act on re-use of public sector information by other departments of public administration - i.e. not for private sector - is in the stage of layout.

The right for environmental information

The right for timely and complete information on environment and natural resources is one of the most important impulses from the point of view of collection and utilization of GI as well as creation and utilization of GIS. Because of mutual influence of individual components of geospace, environmental information is necessary without regards to administrative boundaries. This also initiates international cooperation in this area.

Previous partial regulations contained in individual special laws concerning individual components of the environment and general right for timely environmental information were replaced by a separate act as late as in 1998. Since then, two revisions of this act took place in order to unify it with European regulations - most recently with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC.

Its aim is to invite general public to participate in solving environmental issues. Therefore, it is necessary for governments to provide their citizens with simple and broad access to information. Thematic focus of the information is important - it must fulfill expectations of the recipient. For the same reason, the information has to be provided in a suitable form, it must be simple and descriptive. Therefore, suitable form of visualization is also important.

A necessary role in this process is also played by environmental education, active participation of public in decision-making concerning activities that have impact on the environment in the phase of preparatory work, or even better in the phase of investment program.

Tasks of public sector in the area of environmental protection also include continuous collection and analysis of available information on local, but also regional and global levels, in order to actively prevent hazardous situations or at least to forecast their occurrence and thus increase the level of public security. Cooperation of all concerned departments of public administration should include creation of early warning systems for natural disasters and assistance systems for affected areas (as it was shown for example by floods in central Europe).

Protection of privacy

Protection of privacy of citizens consists in keeping secrecy of certain information on citizens. The purpose is preventing misuse of such information, the publication of which could result into violation of basic human rights and freedoms, mainly the right for private life. Handling such information in a special case of automated processing of personal data is treated by a special regulation regarding specifics of this process. This process is subject to public supervision.

However, cases of privacy protection of individuals outside the area of mass data processing are not affected by this special mode. Therefore, in such cases of violation of personal freedom or privacy, the affected individual has to ask for protection at general courts.

PRACTICAL EXAMPLES OF LEGISLATIVE INFLUENCES ON ACCESS TO GI IN THE CZECH REPUBLIC

Agriculture - use of GI in the area of financial assistance

Prior to joining the EU, financial assistance on agricultural land from the state budget was allocated on basis of a request documented by official abstract from the central land register administered by ČUZK. However, this database lists only proprietary relationships (not users of property), shows significant inaccuracies in parcel boundaries and - because of restitution processes - also in ownership; legal restitution of ownership was usually registered in the written section of database, but sometimes plotting into relevant map was not possible - up to now, it is managed only in a simplified mode.

However, within the frame of common agricultural policy (CUP) subsidies are allocated strictly on used land listed in LPIS (Land parcel information system) database as a part of IACS (Integrated administration and control system). Therefore, a brand new database of land "blocks" based entirely on use of land was created on basis of an ortophotomap in the scale 1:10000. Areas of these blocks were determined by means of digitalization and are subsequently verified by field measurements using GPS. The entire process was very time-demanding and costly. However, resulting ortophotomaps contain large amount of information that can be conveniently used also in other areas.

LPIS database was processed by a commercial subject on contractual basis. The contract - concluded between the central public administration authority and database producer - did not contain any special license stipulation allowing data utilization (not even by the same public administration authority) for purposes other than for which the database was created. Because the required fee for further use was too high, the high potential of GI files covering the entire area of the country has so far not been utilized. The entire GI file was used only for single purpose.

The above-mentioned situation is changing on basis of a new contract with a new data provider; it deals with regular data updating. This new contract already assumes further use of data (so far only in the resort of agriculture - for example for new organization of land property in the form of land adjustments). Off course, non-commercial utilization is expected. However, commercial utilization (for a reasonable price) could help reduce cost which amount to 2 bill. CZK.

Agriculture in the Czech Republic - GIS creation on the level of local authorities

In industrial areas of the Czech Republic, large cities, and other areas attractive for investments, in the first half of the 1990s IS started to develop relatively quickly. Because of acute demand of the market, GIS were implemented in these IS. On the other hand, agricultural areas of the Czech Republic (with some exceptions) are lacking interest of private sector and also funds on the level of local authorities, which could help co-finance at least some project related to creation and use of GIS.

A typical example is the border district of Tachov. After 1989, the state agricultural farm was disintegrated, which resulted into decrease of agricultural activities. There is no appropriate infrastructure for development of industry or investment activities in the area. The unemployment rate in the district is relatively high. All the above-mentioned results into lack of financial funds.

The instant when local authorities were offered the possibility to test benefits of quick, descriptive access to GI in appropriate quality without any significant costs represents a break-point in practical use of these technologies. This was made possible by free acquisition of ortophotomaps in scale 1:2000 from land register, which created the basis of GIS; it was possible to supplement this source of data with other spatial information stepwise according to financial situation and specific needs of the local authority.

A legislative modification was the second significant impulse. This was represented by passing a decree on provision of data from the land cadastre of the Czech Republic in 2001, which set clear rules for provision of GI. The price for data was set relatively high, but it significantly decreases for regular quarterly updating. Since 2003, GI from land cadastre for purposes of public administration are provided to local authorities entirely free of charge.

CONCLUSIONS

The area of GI and GIS as a part of public administration IS experiences significant expansion due to onset of new technologies and changes in public administration policies leading to a knowledge-based society. This trend assumes broad participation of the general public in public processes and increase of individual responsibility for future development. A basic pre-requisite for this is simple and versatile access to information especially from the public sector.

In the Czech Republic, the basic frame for support of access to public sector information, data protection, and privacy protection was created. However, so far there has been no significant practical shift in public access to information, including GI. Public legal consciousness is being created very slowly; inertia in public administration approaches is significant. Therefore, it is necessary emphasize education on all levels of society and support personal involvement of individuals. On the other hand, it is necessary to formalize and especially open up individual legal practices of public administration by means of codes of practice. The aim is to make execution of public administration more simple and transparent and to simplify its subsequent control both by inspection authorities and the general public.

Because the Czech Republic is involved in many European and global structures, it is necessary to perform all these activities in close international cooperation of all concerned subjects.

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Note: Paper was elaborated as a part of the project No.T206030407 Management of the Geographic Information and Knowledge of the Grant Agency of the Czech Academy of Science.

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