Further to yesterday's post with longer comments, this post contains the responses that I have submitted (as Datadaptive) to the questions in the UK Government's call for evidence on making it even easier for public bodies to charge (above marginal cost) for re-use of public sector data.
The call for evidence closes at 11:59pm on 8 September 2026 (that's today).
I was in two minds as to whether it was actually worth submitting a response. As you can see, it is virtually impossible to answer most of the questions in a direct manner without implicitly endorsing the plan for charging that DCMS/Treasury have set out in the call for evidence.
8.1 Impact of current rules
What are the benefits and drawbacks of the current rules on charging for the re-use of public sector data?
The current rules on charging for re-use of public sector data are considerably more complex than the way they are described in the call for evidence. The marginal cost principle is broadly understood as one criteria that underpins open re-use of public sector data as a policy approach. However, given the extent of exceptions and carve-outs in regulation 15, the RPSI regulations themselves are not a significant driver in the availability of public sector data for re-use on either an open or charged basis.
The main drawback of the de facto rules is that there are two many exceptions and routes that permit charging, above marginal cost, for re-use of public sector. The rules should be clarified to reduce the incentives for charging, as part of a broader policy reset that removes the obligations for trading funds and similar bodies to generate revenue from re-use of publicly-funded data assets.
Are you aware of any public sector data assets that you would like to re-use, but which are not disclosed for re-use? If so, please provide examples, noting how they could help your organisation.
It is unclear what "disclosed for re-use" means in this question. Data assets may be available for re-use without being disclosed, and indeed where public bodies charge for re-use they are often reluctant to observe access rights outside the terms of a licensing arrangement.
This is not a question I can answer in a straightforward manner as the focus of my project activities is mainly on unlocking and promoting the availability of open public data, rather than on how particular data assets can help my organisation. My focus is on the terms under which re-use is permitted rather than whether data assets are available for re-use per se.
Do you think current rules on charging affect whether public bodies make data available for re-use, or whether they do so in ways that meet the needs of businesses and other users?
Obviously. The charging model directly affects the business needs that can be met by re-use of the data. Where public bodies are permitted and incentivised to charge for re-use of data, that will increase input costs for businesses – conferring a market advantage on larger businesses that can afford to absorb those costs and to the detriment of smaller competitors who cannot. A charging model is also likely to prevent business re-use for purposes that require frictionless sharing of data on the web or elsewhere in the public domain, because the licensor will usually be under an obligation to hold the data securely.
8.2 Changing current rules
Do you think it is appropriate for public bodies to charge above marginal costs for the re-use of data assets they hold, if the resulting revenues can be used to:
There are rarely, if ever, any circumstances under which public bodies should charge above marginal cost for re-use of data assets that are solely owned by the public sector. There is no real argument for ring-fencing the funding of public data infrastructure or linking the funding of re-use and use in the ways proposed in the call for evidence. Data infrastructure and assets should be funded through normal mechanisms, subject to a fact-specific business case.
8.3 Design principles for reform
We have outlined 4 principles to guide any reform of how the public sector charges for data: safeguarding trust; embedding a transparent, rules-based framework; enabling flexibility; and ensuring legal clarity. What principles do you think should guide any reform?
There is certainly a case for reforming or replacing the RPSI regulations. RPSI was originally the UK's transposition of the European Union's 2013 PSI Directive and is now considerably out of date. The EU itself has moved on – the PSI Directive has been replaced by the Open Data Directive, with an emphasis on unlocking "high-value datasets" and greater convergence between re-use of PSI and the open data agenda.
However, I reject the premise that the plan in the call for evidence represents an improvement or reform. Taken literally, principles such as safeguarding trust, transparency, flexibility, clear rules, etc. are always good practice. However in this context they are clearly just a rhetorical smokescreen for proposals that will undermine that availability and re-use of public data infrastructure, to the detriment of the public interest.
If public bodies are able to charge for a wider range of data assets under a rules-based framework, should they determine which data assets they can charge for, or should a single body be responsible for these decisions?
While I am wholly opposed to the DCMS/Treasury plan described in the call for evidence, if the Government does make it even easier for public bodies to charge above marginal cost then I think there should be a central body that vets those decisions. The National Archives already does that to some extent for Crown copyright material under its Delegation of Authority scheme and previously under the Information Fair Trader Scheme. Any such oversight and central decision-making process should be publicly documented and include a mechanism for business and other interested re-user to make representations prior to finalisation of any decisions for charging.
What challenges might users face if public bodies can charge for a wider range of data assets, and what measures should Government take to address them and ensure that all public sector data – including data made available under non‑Open Data terms and conditions – is affordable and easy to re‑use? (For example, measures could relate to licensing terms, interoperability and the ability to combine data, data quality, and service and delivery models.)
There is no way to reconcile the stated objective of making all public sector data "affordable and easy to re‑use" with the plan to increase charging above marginal cost, and indeed the existing widespread practice of charging for high-value datasets is the main barrier to maximising the potential for re-use of public sector data. Charging for re-use and associated terms and restrictions inevitably introduce burdens and friction in the re-use of public sector data, and charging entirely prevents re-use for many use cases – particularly where businesses want to share data directly with customers or combine public data with their own data on the web.
8.4 Reform approach
What criteria and conditions should be met when determining whether it is possible to charge above marginal cost for a data asset?
Is there a particular approach you would recommend to enable public bodies to charge above marginal costs for a wider range of data assets?
I reject the premise of these two questions, as they assume support for the plan in the call for evidence. There are unlikely to be any circumstances in which it is optimal or appropriate for public bodies to charge above marginal cost for re-use of publicly owned data assets of the type in scope of the DCMS/Treasury plan.
There are however scenarios in which it may be reasonable for public bodies to charge for re-use of new or derived data assets or outputs that are produced in response to demand from re-users. If a public body has spare capacity, or is the only source capable of producing a particular data asset, it is reasonable for that body to offer bespoke data outputs and charge the first re-user for at least the costs of production. If the data is suitable, it should be licensed openly – but provided there is no royalty in addition, and that subsequent re-users are charged no more than marginal cost, that model enables a public body to raise revenue from re-use without any conflict with open principles. ONS operates just such a revenue model with its ad hoc statistics.
Any final comments/suggestions you would like to add?
I have put some further notes on this call for evidence in a recent blog post https://www.owenboswarva.com/blog/post-od6.htm