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STUDY ON THE COPERNICUS DATA POLICY POST-2020 implementing Framework contract No 386/PP/2014/FC (30-CE-0672813/00-46)

NEXTSPACE-SC5

FINAL REPORT

Prepared by: NEXTSPACE

Approved by: Gerard Margarit

Authorised by: Julia Yagüe

Code: SC5_D2

Version: V4.0

Date: 02/04/2019

Internal code: GMV 23284/18 V1/18


DOCUMENT STATUS SHEET Version Date Contract Changes

1.0 08/12/2018 SC5 First draft version of the final report, addressing also EC’s feedback on the Interim Report.

2.0 15/01/2019 SC5 Revised version of the final report, addressing EC’s comments on version 1.0.

3.0 25/02/2019 SC5 Revised version of the final report, addressing EC’s comments version 2.0 and further comments received during Final Review meeting of 7th February 2019.

4.0 25/03/2019 SC5 Revised version of the final report, addressing EC’s comments version 3.0, with specific focus on improving the infographic in the executive summary.

5.0 02/04/2019 SC5 Revised version of the final report, addressing EC’s comments version 4.0, and improvement of the readability of the infographic in the executive summary.


TABLE OF CONTENT 1. EXECUTIVE SUMMARY ....................................................................................................... 6 2. INTRODUCTION .............................................................................................................. 12

2.1. OBJECTIVE OF THE STUDY ......................................................................................... 12 2.2. PURPOSE AND SCOPE OF THIS DOCUMENT .................................................................. 13 2.3. ASSESSMENT METHODOLOGY OVERVIEW .................................................................... 13 2.4. ACRONYMS .............................................................................................................. 13 2.5. APPLICABLE DOCUMENTS .......................................................................................... 14 2.6. REFERENCE DOCUMENTS .......................................................................................... 14

3. BACKGROUND AND CONTEXT ANALYSIS ............................................................................. 16 3.1. A CONTEXT IN MOTION ............................................................................................. 16 3.2. COPERNICUS EVOLUTION SCENARIOS ........................................................................ 17 3.3. OVERVIEW OF THE CURRENT COPERNICUS DATA POLICY .............................................. 17 3.4. MOTIVATION FOR REVIEW OF THE COPERNICUS DATA POLICY ....................................... 19 3.5. BENCHMARKING OF THE RELEVANT DATA POLICIES ..................................................... 20

3.5.1. Pricing policy – High level assessment ............................................................. 20 3.5.2. Access Policy ............................................................................................... 24 3.5.3. conditions and restrictions ............................................................................. 28 3.5.4. US landsat data policy and current review ........................................................ 29 3.5.5. ESA experience with ERS and Envisat .............................................................. 32 3.5.6. Review of eumetsat data policy ...................................................................... 32 3.5.7. Review of ECMWF Data Policy ......................................................................... 34

3.6. THE VALUE OF OPEN DATA (BY PWC) .......................................................................... 35 4. OPTIONS IDENTIFICATION ............................................................................................... 37

4.1. APPROACH AND KEY DIMENSIONS .............................................................................. 37 4.2. OPTIONS DEFINITIONS ............................................................................................. 37

5. LEGAL ANALYSIS ............................................................................................................. 39 5.1. COPERNICUS DELEGATED REGULATION - CURRENT EXCEPTIONS AND LIMITATIONS

POSSIBILITIES ......................................................................................................... 39 5.2. FEASIBILITY UNDER INTERNATIONAL LAW .................................................................. 40

5.2.1. G8 Open Data Charter ................................................................................... 40 5.2.2. International Open Data Charter ..................................................................... 41 5.2.3. GEO and GEOSS ........................................................................................... 41 5.2.4. World Trade Organisation .............................................................................. 42 5.2.5. Aarhus convention ........................................................................................ 43 5.2.6. Bilateral Agreements ..................................................................................... 44 5.2.7. World Meteorological Organisation (WMO) ....................................................... 45 5.2.8. International Science Council ......................................................................... 45 5.2.9. Summary .................................................................................................... 46

5.3. FEASIBILITY UNDER EU LAW ...................................................................................... 46 5.3.1. Feasibility under draft space programme Regulation .......................................... 47 5.3.2. EU legal Framework on Access to EU information .............................................. 49 5.3.3. EU legal Framework on Reuse of Commission documents ................................... 50


5.3.4. INSPIRE Directive ......................................................................................... 50 5.3.5. EU legal framework for personal data protection ............................................... 51 5.3.6. EU legal framework on classified Information ................................................... 52 5.3.7. EU Legal Framework on the Protection of Databases .......................................... 53 5.3.8. Summary .................................................................................................... 53

5.4. LEGAL IMPLICATIONS OF CHANGING THE FFO DATA POLICY BY DEFINED OPTION ............ 54 5.4.1. First option: access allowed only for EU users ................................................... 55 5.4.2. Second option: access allowed against a fee for all users with the exception of EU

Pulic Insitutions .................................................................................................. 55 5.4.3. Third option: access allowed for all users (EU and non-EU) but no right to

redistribute the data ........................................................................................... 56 6. TECHNICAL/ OPERATIONAL ANALYSIS ................................................................................ 57

6.1. GENERAL CONSIDERATIONS AND ASSUMPTIONS ......................................................... 57 6.2. TECHNICAL/ OPERATIONAL FEASIBILITY ..................................................................... 60

6.2.1. Restriction based on the origin of recipients ..................................................... 60 6.2.2. Restriction based on the payment of a fee ....................................................... 61 6.2.3. Restriction based on the type of use (incl. Redistribution of data) ........................ 64 6.2.4. Restriction based on the type of user .............................................................. 66 6.2.5. Restriction based on the type of data / service / product .................................... 67

6.3. SUMMARY OF TECHNICAL / OPERATIONAL IMPLICATIONS OF CHANGING THE FFO DATA POLICY BY SELECTED OPTION .................................................................................... 67 6.3.1. First option: access allowed only for EU users ................................................... 67 6.3.2. Second option: access allowed against a fee for all users with the exception of EU

PuBlic InsTitutions .............................................................................................. 68 6.3.3. Third option: access allowed for all users (EU and non-EU) but no right to

redistribute the data ........................................................................................... 70 7. SOCIO-ECONOMIC IMPACTS OF CHANGING THE FFO DATA POLICY BY DEINED OPTION ........... 72

7.1. INTRODUCTION ........................................................................................................ 72 7.2. BASELINE: NO CHANGE TO THE CURRENT POLICY ........................................................ 72 7.3. FIRST OPTION: ACCESS ALLOWED ONLY FOR EU USERS ............................................... 75 7.4. SECOND OPTION: ACCESS ALLOWED AGAINST A FEE FOR ALL USERS WITH THE EXCEPTION

OF EU PULIC INSITUTIONS ........................................................................................ 82 7.5. THIRD OPTION: ACCESS ALLOWED FOR ALL USERS (EU AND NON-EU) BUT NO RIGHT TO

REDISTRIBUTE THE DATA .......................................................................................... 85 8. POLITICAL/STRATEGIC IMPLICATIONS OF CHANGING THE FFO DATA POLICY .......................... 88

8.1. GENERAL CONSIDERATIONS ...................................................................................... 88 8.2. STRATEGIC IMPACT BY POLICY OPTION ....................................................................... 90

9. CONCLUSIONS ................................................................................................................ 92


LIST OF TABLES AND FIGURES Table 2-1: Acronyms ............................................................................................................. 13 Table 2-2: Applicable Documents ............................................................................................ 14 Table 2-3: Reference Documents ............................................................................................ 14 Table 3-1: Copernicus evolution scenarios considered for the scope of this study .......................... 17 Table 3-2: Pros and cons of different pricing policy options ......................................................... 24 Table 3-3: Data subject to licensing terms and conditions in EUMETSAT data policy . Error! Bookmark not defined. Table 6-1: Summary of revenues driven by free Copernicus D&I (Sources: PwC analysis on EARSC 2015 and 2017 industry surveys) ................................................... Error! Bookmark not defined. Table 6-2: Estimated delta impact on European downstream industry (Option 1 vs. Status Quo in the baseline-medium case scenario) .................................................... Error! Bookmark not defined. Table 6-3: Estimated delta impact on European EO data anlytics industry (Option 1 vs. Status Quo in the baseline-medium case scenario) ............................................... Error! Bookmark not defined.

Figure 2-1: Study Logic of the project ..................................................................................... 12 Figure 3-1: Sales of Landsat photographic products from the EROS Data Centre, South Dakota, USA. .......................................................................................................................................... 30 Figure 3-2: Landsat scenes distributed, 2007 – 2013. Source: Group on Earth Observations ........... 31 Figure 6-1: Examples of architecture (access restriction based on the payment of a fee) ................ 62 Figure 6-2: Option 1- Estimated cost for the EC (preliminary) ..................................................... 68 Figure 6-3: Option 2- Estimated cost for the EC (preliminary) ..................................................... 70 Figure 6-4: Option 3- Estimated cost for the EC (preliminary) ..................................................... 71 Figure 7-1: Summary of yearly and total Copernicus benefits in Europe (source: PwC) ................... 73 Figure 7-2: Summary of Copernicus benefits for European Intermediate Users (source: PwC) ......... 73 Figure 7-3: Summary of Copernicus benefits for European End Users by Application (PwC) ............. 74 Figure 7-4: Summary of Copernicus for European End Users by Theme (source: PwC) ................... 74 Figure 7-5: Summary of Copernicus benefits for European Intermediate Users in case of Option 1 “access to EU users only” data policy ....................................................................................... 79 Figure 7-6: Ramp-up assumptions and benefit drop over time .................................................... 80 Figure 7-7: Summary of Copernicus benefit loss for European End Users in case of Option 1 “access to EU users only” data policy ...................................................................................................... 81 Figure 7-8: Option 2- total estimated delta benefit loss for Copernicus users (cumulative 2017-2035, discounted, baseline scenario- medium case) ........................................................................... 83 Figure 7-9: Analysis of potential Copernicus user subscription revenues in case of Option 2 ............ 84 Figure 7-10: Total estimated delta economic impacts of Option 2 (cumulative 2017-2035, discounted, baseline scenario- medium case) ............................................................................................ 85 Figure 7-11: Total estimated economic delta impacts of option 3 vs. the status quo (cumulative 2017-2035, discounted, baseline scenario- medium case) .................................................................. 87 Figure 8-1: Impact on Copernicus policy’s strategic/ political drivers by option .............................. 91 Figure 10-1: Overview of stakeholder responses on the relevant driving principles of FFO data policy ................................................................................................. Error! Bookmark not defined.


1. EXECUTIVE SUMMARY

The “Study on Copernicus data policy post-2020” was conducted by the NEXTSPACE Consortium for DG GROW. It aimed at investigating potential alternative options to the current data policy and looking at their respective legal, technical, economic and strategic impacts compared to the free, full and open (FFO) data policy.

The study provides an evidence-based analysis to inform the stakeholders involved in the current discussions on the future EU space programme, although it does not prejudge any decision by the EU Council or the Parliament. This analysis is based on internal analysis and interviews held with a set of key stakeholders. The full reports of the conducted interviews are provided in the Annex.

Three alternative options are considered:

• Option 1: Restricting Copernicus data and information (D&I) to EU users only

• Option 2: Charging Copernicus users (except European public institutions)

• Option 3: Allowing access to all users but limiting the redistribution rights to entities with whom the EU has established agreements.

These three options are seen as “illustrative scenarios”. More sophisticated data policies can be analysed as sub-sample or combination of the above. Each of the three options is compared to the status quo (i.e. the continuation of the FFO data policy).

Based on the conducted analyses, the Copernicus FFO data policy remains the most relevant option compared to alternative options. First of all, all three options are seriously constrained – if not made impossible - by existing EU regulation and international commitments. Even assuming that a legal way is found, these options would entail significant operational costs for Copernicus, requiring a control and enforcement mechanism to be developed. A change in the FFO policy would also have a negative socio-economic impact for EU citizens, while in some cases benefiting to some EU stakeholder groups (e.g. the EU big data industry). Finally, these three options would expose the EU to strategic risks, in particular retaliations from third countries.

The detailed analysis of the 3 options is summarized below.

Option 1: Restricting Copernicus data and information to EU users only

1.1: Legal feasibility

From the legal feasibility perspective, it has to be noted that neither the current Copernicus Regulation nor the proposed Space Programme Regulation foresee explicit access restrictions for non-EU users. Restrictions for security reasons are possible, but they are generic and do not apply to specific origins of users. If data is categorized as sensitive, only accredited users are allowed to access. The only potential restrictions to EU users are in the case of technical constraints, which will become increasingly unlikely with the Copernicus Data and Information Access Services (DIAS) and improvement in the conventional data access infrastructure of Copernicus.

The possibility to limit access to EU documents for persons and entities based in the EU, but under foreign control or ownership, finds limitations in view of Article 42 of the Charter of Fundamental Rights, Article 15(3) TFEU, as well as of relevant provisions in Regulation (EC) No 1049/2001 and Commission Decision of 12 December 2011 on the reuse of Commission document.

International legal instruments, including existing bilateral cooperation agreements between the EU and other countries dealing with Copernicus data access, are mostly non-binding. However, such broad exclusions could be considered questionable with a view to WTO commitments of the EU under the GATS

1.2 Operational costs

Providing access only to EU users could not be guaranteed through an automated process: any automatic determination of the country of origin, e.g. based on the IP address, is relatively easy to circumvent with appropriate technical means, e.g. through the use of a VPN. The practical implementation of the restriction should, thus, be based on a declaration and enforcement process.


The effectiveness of the access restriction could not be guaranteed without asking registrants to provide an evidence of their EU origin and without putting in place the necessary resources to verify that the provided evidence is trustworthy. Controls should be performed by human operators. An administrative and control unit should be established to perform the necessary verifications, which would induce additional recurrent operational costs. Considering the current and forecasted number of registered users, these operational costs could be around 7 million Euro annually for the programme, implying a 134 million cumulated costs over 20 years (discounted values).

Such registration and enforcement process would also have administrative cost for the users themselves, which are not estimated here. During the interviews, the European industry actually expressed a preference for a clear and simple policy such as the FFO, rather than being faced with complex and burdensome administrative restrictions.

1.3 Socio-economic impact

Proponents of access restrictions argue that limitations are necessary to protect the EU downstream industry, and to prevent non-EU IT players from realizing undue benefits out of Copernicus. There might, indeed, be a positive impact for European intermediate users (i.e. downstream application developers and IT/ big data companies) arising from data access restrictions for non-EU users. Under very optimistic assumptions (EU platforms capturing the entire Copernicus-related revenue of non-EU platforms), the revenue of EU intermediate users would increase by 37 million euro annually (or 700 Million Euro cumulated over 2017-2035 period, discounted values). This is, obviously, conditional on the full implementation of the restriction to EU users. In practice, such limitation would be easy to circumvent and difficult to enforce. Interested non-EU companies may, for instance, establish EU affiliates and, as outlined before, any measures attempting to verify ownership and shareholding structures would result in significant administrative costs.

The impacts on EU end-users is even more problematic. In fact, Copernicus-based applications are increasingly the results of global value chains. In other words, EU Copernicus users benefit of value-added services and applications that depend at least partially on non-European data sources or IT solutions. Cutting access to Copernicus for non-EU users could therefore have negative repercussions for EU end users as well, as many Copernicus applications used in the EU are mainly developed with the support of non-EU providers (data platforms or application developers).

Taking a rather conservative approach, the study team has made a bottom-up analysis of the end-user benefit drivers and assessed which ones are more or less impacted by a potential access restriction to EU users only. It has been assumed that those applications which mainly directly address EU public institutions through the Copernicus Services will not be impacted by Option 1 type of restrictions, while the others, mainly addressing the commercial market will be. For the most likely impacted applications, an average 50% chance of benefit loss has been applied over the reference period (figure based on industry interview), with higher values at the start but then gradually improving with the ramp-up and uptake of European players’ capabilities and platforms (from 2021 to 2035). It results that the benefits of Copernicus for EU end users could be reduced by 16% compared to the status-quo. This would represent a loss of 600-800 million Euro annually for EU end users compared to the FFO data policy (or 13 Billion Euro cumulated over 2017-2035).

Thus, combining the delta impacts on both Copernicus intermediate users and end users would generate a total cumulative benefit loss of 12 billion Euro over 2017-2035 for the EU (-13% compared to the status quo).

In essence, many Copernicus applications used in the EU are currently developed with the support of non-EU providers (data platforms or application developers). If non-EU players cannot access Copernicus data anymore, European users of these applications will be negatively affected, until a comparable European offer is developed. On the other hand, European data platforms and application developers would benefit from this policy. Overall, the losses for EU end users would largely outweigh the gains for EU data platforms and downstream players.

Option 2: Charging Copernicus users (except European public institutions)

2.1: Legal feasibility

From the legal perspective, the introduction of charges would meet strong limitations. Over the past years, the EU has implemented numerous legislations promoting free of charge access to public sector data, both for data held by the EU and by Member States. The relevant EU legislation, and in particular


Regulation (EC) No 1049/2001, and Commission Decision of 12 December 2011 on the reuse of Commission documents, implies that the only feasible option would be to apply charges based on the marginal cost of direct delivery of Copernicus data or information, rather than charging for the cost of producing such data or information.

It also has to be noted that marginal costs concepts were developed when data was mainly delivered on physical storage devices by postal services. In today’s environment of Cloud-based online access platforms, there are, however, basically no marginal costs of providing data/information to individual users. Users simply access data digitally and there are merely no identifiable costs related to one individual access or use process.

Under international law, important instruments such as the G8 Open Data Charter, the GEO Data Sharing Principles, WMO Resolutions and many other documents advocate that public data in the relevant field of applicability should generally be made available free of charge. While most of these documents are non-binding, they reflect broad joint political commitments.

2.2: Operational costs

Depending on the type of charging policy and payment system applied, significant technical impacts on the current data and products delivery chains would occur. Technical experts interviewed stated that the whole Copernicus infrastructure is designed, set-up and operated based on the FFO policy, so that the introduction of a charging system may require fundamental re-design of systems and processes and would have significant impacts on the Ground Segment.

Considering that a restriction based on the payment of a fee should be necessarily combined with a restriction on the redistribution of data (see Option 3 below), the costs should cover a) the implementation and operation of a potentially centralised payment system to which all access platforms may connect, b) the support to users (e.g. in case of problems related to payment/invoicing, in case of questions related to the payment policy, etc.) and c) the performance of administrative checks to verify that users would not cheat. It is estimated that such a payment infrastructure would cost about 11 million Euro annually, or 220 million Euro over 20 years (discounted values).

2.3 Socio-economic impact1

Resulting from historical comparisons, the introduction of charges for access and use of EO data has more drawbacks than benefits. As a main example, the Landsat advisory group has established in 2017 that putting in place charges for Landsat data from 1984 to 2007, involved operational costs which largely outweighed the income generated, and caused a 97% downturn in data use. If charging Copernicus users resulted in a similar drop in the number of users, it would generate a loss of benefits for the European society of around 43.4 billion Euro between 2017 and 2035 (or 48% of the total estimated benefits under the FFO), composed of a:

n Benefit loss for intermediate users of 5.7 billion Euro cumulatively (ca. 0.3 billion Euro per year)

n Benefit loss for end users of 37.7 billion Euro cumulatively (ca. 2 billion Euro per year)

Option 3: allowing access to all users but limiting the redistribution rights to entities with whom the EU has established agreements:

In such scenario, only selected entities would have the right to re-distribute Copernicus data and information services, based on contractual arrangements with the European Union. Such restrictions would have the objective to favour “authorized” re-distributors over large (essentially non-EU) Cloud/IT providers that currently redistribute large parts of the Copernicus portfolio. Such restrictions would not apply to “limited” re-distribution of products (e.g. a journalist publishing a Sentinel image). The distribution of products derived from original Copernicus Data and Information (D&I) would also continue to be allowed, provided there is a clear added-value compared to the original Copernicus product.

2.1. Legal feasibility

1 All values are discounted


From a legal perspective, similar to Option 2, the applicable EU legislative framework seems to restrict the possibility for this option considerably, as it broadly allows re-use of data held by EU institutions for all commercial and non-commercial purposes. Commission Decision 2011/833/EU on re-use of data held by EU institutions, in particular, demands that data shall be generally made available for reuse without restrictions. However, it seems possible to introduce a restriction regarding the re-distribution of entire or very substantial data-sets. For drawing the line between individual data re-distribution and full or substantial re-distribution, the assessment may be made in line with the Database Directive 96/9/EC. Accordingly, re-distribution of insubstantial parts of Copernicus data and information, evaluated qualitatively and/or quantitatively might be permissible, whilst re-distribution of substantial parts and/or repeated and systematic re-distribution of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database might not be permitted.

2.2: Operational costs

From a practical perspective, it would be required to establish clear criteria for a minimum level of intervention on the original data set leading to non-applicability of the re-distribution prohibition, which is highly complicated. Due to the ongoing technological and market evolutions (if not disruptions) linked to big data, data analytics and artificial intelligence, any line drawn may soon prove to be impractical and unduly restrictive, so that a regular revision should be foreseen.

Implementation of the option would require the setting up of a monitoring and enforcement mechanism, going beyond the mere user registration. As re-distribution can occur by many means, including by social media, email or postal services, there are doubts that any effective control and enforcement mechanism can be established and in accordance with the protection of fundamental rights and applicable laws. On the legislative side, either the Space Programme Regulation or the Copernicus Delegated Regulation would need to establish a set of fines or other punishments in case of violations, which to our knowledge has never been considered so far.

From an operational standpoint, an annual cost of ca. 4 million Euro in the first year and 3.3 million Euro in the second year then growing at the pace of user growth will have to be spent by the EC to perform all the necessary audits to make sure the policy is respected. Thus, the administrative costs for the programme under this option would be around 178 million Euro over a 20-year time frame (discounted values).

2.3 Socio-economic impact

This option would favour DIAS-es players (authorized platforms) against other big data players. Thus, similarly to Option 1, a positive impact for European IT/ big data companies of 0.5 billion Euro cumulatively over the reference period is estimated (discounted values).

In regard to the ‘downstream value-added service providers’ , they would theoretically not be impacted in the long run, as by definition such providers already add some value on Copernicus and would therefore not be affected by the limitation. However, in the short-run, they might be affected if they were relying on data providers suddenly not allowed to re-distribute Copernicus data. This negative impact would last until the “authorized” platforms have fully taken over “non-authorized” distribution channels. Thus, it is assumed that starting from the introduction of the policy in 2021 there will be first a drop of the benefits for the downstream players and certain types of end-users, but then gradually improving with the ramp-up and uptake of the “authorized” platforms (assumed equal to 10 years).

For the most likely impacted applications, an average of ca. 20% chance of benefit loss has been applied over 10 years from the introduction of the policy (figure derived from industry interview), with higher values at the start (50% drop), but then gradually improving with the ramp-up and uptake of European players’ capabilities and platforms.

The resulting discounted cumulative benefit loss for EU downstream players would amount to around 0.6 billion Euro and around 4.3 billion Euro for EU end users.

Thus, option 3 would generate a total cumulative socio-economic benefit loss of -4.4 billion Euro between 2017 and 2035, -5% loss compared to the free, full and open data policy.

In a nutshell, if some platforms are not allowed to redistribute Copernicus data anymore, this will negatively affect the European users of these platforms, until a comparable European offer is developed. On the other hand, European platforms allowed to redistribute Copernicus data would benefit from the policy. Overall the losses for EU end users would outweigh the gains for EU platforms.

Overall strategic impact


Introducing access limitations for non-EU users or any other access restrictions would mark a political U-turn compared to the strong and continuous EU commitment to open data, in particular regarding free exchange of information on environmental and climate change essential variables. Such move could undermine the EU’s credibility and political standing in the diverse relevant organisations, bodies and fora.

In addition, a ‘protectionist’ move could potentially generate a reaction from other leading powers to restrict their data policies as well, which in turn would have impacts also on EU users of Earth observation data and overall could lead to a global reverse trend in open data. Interviews with European downstream industry representatives have revealed strong concerns on access restrictions for non-EU users because of such retaliation risk.

Furthermore, one has to take into account impacts of access restrictions on policies, agreements and collaborative efforts at global level on such matters as climate change, protection of the environment, and many scientific areas. While these impacts have not been quantified to date, it seems reasonable to expect significant drawbacks on scientific advancement, international scientific collaboration and achievements in key global policy areas.

In addition, there are other ways to support the EU big data industry, without modifying the data policy. For instance, the download speed of the conventional data access hub (managed by ESA) could be limited to the needs of a “normal individual user”, de facto forcing big data players to access Copernicus data through the EU-based DIAS-es. This point should be further analysed in a separate context.


2. INTRODUCTION

2.1. OBJECTIVE OF THE STUDY In June 2018, the European Commission submitted its proposal for a Regulation establishing the space programme of the Union and the European Union Agency for the Space Programme. Among others, the proposal aims to ensure the continuation of the Copernicus programme over the 2021-2027 Multiannual Financial Framework. As the Commission’s proposal is discussed by Council and Parliament, the European Commission wishes to evaluate whether the current data policy of the Copernicus programme remains relevant to its objectives, in particular given the following evolutions:

n The Copernicus ecosystem is growing quickly, thanks to the huge amount of Earth Observation

data made available by the programme under the free, full and open data policy. n The Copernicus portfolio might expand in the future, with new satellite missions and services to

be launched during the 2021-2027 MFF. n The technological and business landscape is evolving, opening doors for new industrial

cooperation.

In the above context, under the scope of Framework Contract (FWC) No 386/PP/2014/FC (Specific Contract#5), the NEXTSPACE Consortium (composed of GMV, SpaceTec Partners and FDC) has been requested by DG GROW to perform a study on the Copernicus data policy post-2020. The study aims at investigating potential alternative options, and looks at their respective legal, technical, economic and strategic impacts. The study shall provide an evidence-based analysis to inform the stakeholders involved in the current discussions on the future EU space programme, although it does not prejudge any decision by the Council or the Parliament.

The overall study logic (shown in Figure 2-1 below) is structured along four main tasks: n Task 1 Context analysis and option definition, aimed to depict the evolving context surrounding the

Copernicus programme and to define the data policy options to be analysed during the study

n Task 2 Targeted stakeholder consultation, aimed at interviewing a selected number of key stakeholders

n Task 3 High-level assessment, aimed to assess the implications of the defined data policy options (from a legal, economic, technical, and political/strategic standpoint)

n Task 4 Conclusions and recommendations, aimed at synthesising the key findings and at advising the most adequate solution on the basis of the performed analyses.

Figure 2-1: Study Logic of the project

The Study has been produced by the NEXTSPACE Consortium in collaboration with Ingo Baumann (BHO Legal) and Prof. Ray Harris (emeritus from University College London).

Context analysis and options definition

1

Targeted stakeholder consultation

2

High level assessment

3

Conclusions and recommendations

4


2.2. PURPOSE AND SCOPE OF THIS DOCUMENT This “final report” presents the key findings of the study. It starts by introducing an overview of the changing Copernicus context Then, it discusses the impacts against the status quo of different types of potential restrictions, with specific focus on three down-selected options. In particular, the legal/regulatory, the technical/operational, the socio-economic, and the strategic/political impacts are assessed and presented in turn.

The document is, thus, structured along the following sections:

n Introduction

n Background and context analysis

n Regulatory and legal analysis

n Technical and operational analysis

n Socio-economic impact assessment

n Strategic/ political analysis

n Conclusions and next steps

n Annex

2.3. ASSESSMENT METHODOLOGY OVERVIEW In order to assess the impacts of Copernicus data policy from a socio-economic stand point, considering that a fully-fledged socio-economic benefit assessment of Copernicus has been recently completed by PwC, we will adopt a pragmatic approach, and basically calculate the +/- delta impact (‘correction coefficient’) that a changed data policy will have on each benefit driver of the different Copernicus evolution scenarios.

Equally importantly, the legal, technical/operational and strategic implications of a change of the current FFO data policy have been qualitatively assessed.

For the purpose of the study analysis, the options considered for restricting the access (i.e. access by fee, restriction due to the country of origin, etc.) must be understood as "basic" options which could then be used as "building blocks" for more elaborated restrictions.

In practice, if access restrictions were implemented, (some of) the basic options could be combined together.

The economic impacts, and the legal, technical and operational implications associated with the implementation of such restrictions would then be a combination of the specific constraints and impacts associated to each individual type of "basic" restrictions.

2.4. ACRONYMS Acronyms used in this document are included in the following table.

Table 2-1: Acronyms

Acronym Definition

CAMS Copernicus Atmospheric Monitoring Service

CAP Common Agricultural Policy

CFP Common Fisheries Policy

COM Communication

EARSC European Association of Remote Sensing Companies


Acronym Definition

EC European Commission

EMS Emergency Management Service

EO Earth Observation

EU European Union

EOV Essential Ocean Variables

OECD Organisation for Economic Co-operation and Development

SDG Sustainable Development Goals

SIS Sectoral Information Service

UN United Nations

UR User Requirements

WFD Water Framework Directive

2.5. APPLICABLE DOCUMENTS The following documents are applicable to this study to the extent specified herein. Applicable documents are those referenced in the Contract. They are referenced in this document in the form [AD.X]:

Table 2-2: Applicable Documents Ref. Title Reference Date

[AD.1] ToR “Study on the Copernicus data policy post-2020" Ares(2018)3557906 16/06/2018

[AD.2] Contract "Study on the Copernicus data policy post-2020" EC_GMVAD_SC5 28/08/2018

2.6. REFERENCE DOCUMENTS The following documents, although not part of this document, amplify or clarify its contents. They are referenced in this document in the form [RD.X]:

Table 2-3: Reference Documents

Ref. Title Year

[RD.1] Harris R., Earth Observation Data Policy, John Wiley & Sons Ltd, Chichester, ISBN 0 471 97188 X

1997

[RD.2] Harris R., Earth Observation Data Policy and Europe, A A Balkema, Lisse, The Netherlands, ISBN 90 5809 258 5

2002

[RD.3] Harris R and R Browning, Global monitoring: the challenges of access to data, UCL Press - Cavendish Publishing Ltd, London, ISBN 18594 1950X

2005

[RD.4] SWD(2013) 190 final/ COM(2013) 312 final “Impact Assessment accompanying the document proposal for a Regulation of the European Parliament and of Council establishing the Copernicus Programme and repealing regulation (EU) No 911/2010

2013

[RD.5] Commission Delegated Regulation (EU) N° 1159/2013 establishing registration and licensing conditions for GMES users and defining criteria for restricting access to GMES dedicated data and GMES service information

2013

[RD.6] European Parliament and Council 2014


Ref. Title Year Regulation (EU) No 377/2014 of the European Parliament and of the Council of 3 April 2014 establishing the Copernicus Programme and repealing Regulation (EU) No 911/2010

[RD.7] Commission Proposal for a Regulation establishing the space programme of the Union and the European Union Agency for the Space Programme

2015

[RD.8] Open data policies and satellite Earth observation, Space Policy 31, 44-53. 2015

[RD.9] Gabrynowicz, J, R Harris, L Mantl, M Reynders, L J Smith and A Soucek, The 1986 Principles Relating to Remote Sensing of the Earth from Outer Space, Cologne Commentary on Space Law, volume III, eds S Hobe, B Schmidt-Tedd and K-U Schrogl, Carl Heymanns Verlag GmbH

2015

[RD.10] Ex-ante assessment of Copernicus benefits (PwC study)- Final report and executive summary 2017


3. BACKGROUND AND CONTEXT ANALYSIS

3.1. A CONTEXT IN MOTION The Copernicus data policy as established by the Copernicus Regulation [RD.6], and as defined in more detail in the Copernicus Delegated Regulation [RD.5], is widely recognised as a main contributor to the overall success of the Copernicus programme and the positive economic developments in the European Earth Observation sector over the past years. Nevertheless, a number of circumstances and events as well as potential programme and sector evolutions justify an assessment of the programme’s data policy.

When the Copernicus Delegated Regulation was proposed by the Commission, critics voiced concerns that the full, free and open data policy would benefit industrial players from non-European countries, namely from the United States and China, and that equal conditions of access to non-European players could harm the competitiveness of European industry. In fact, when the first data from the Sentinels became available, large US IT companies – like Google and Amazon - were among the first to download large volumes of the data and made them available via their Cloud Computing platforms. For a certain time, these platforms offered the most comprehensive and easiest way to access Copernicus data and they attracted also many European Earth Observation industry clients. While the use of Google by European industry declined over time, not at least due to the highly unfavourable terms and conditions employed, Amazon Web Services is still today the most widely known and used platform for Copernicus data. The European Commission reacted to these developments with the Copernicus Data and Information Access Services (DIAS) platforms and the subsequent procurements of five such platforms through the European Space Agency and EUMETSAT. The DIAS have taken up operational services in summer 2018 and are expected to improve Copernicus data access via European platforms.

The Copernicus Space component will evolve under the next phase of the programme. ESA and the Commission have developed a new version of the Long-Term Scenario for the Copernicus Space Component. It needs to be assessed, whether the full, free and open data policy is appropriate for all data from new missions (e.g. High-Priority Candidate Missions, aka Copernicus Expansion Missions).

The EU has significantly enhanced its engagement in security and defence matters and there are significant links between the EU space policy and its security and defence policy. A stronger emphasis on security and defence may also have impacts on the Copernicus programme. Among others, the potential inclusion of new missions for Very High-Resolution (VHR) data and services requires due consideration under data policy aspects.

For defining the evolution of the programme, the Commission currently assesses whether and to what extent national and commercial capacities and solutions could be used to complement the existing and future Sentinel satellites in a way that would bring value to the programme and satisfy the user requirements. Using VHR data from national and commercial systems may have implications on the Copernicus data policy.

Further, the Commission evaluates whether additional data from in situ systems, High Altitude Pseudo-Satellites (HAPS) or Remotely Piloted Aircraft Systems (RPAS) could be used for Copernicus during the next phase of the programme.

Finally, the Commission evaluates whether new Copernicus services should be launched during MFF phase. On the longer term, the split of the Copernicus services in six main themes might also be reconsidered.

More generally, the technological and business landscape around Copernicus is rapidly evolving. We witness a wave of commercial activities, flagged as NewSpace, across all areas of the space sector and including numerous start-ups companies, use of new production methods, new types of launchers, constellations of small satellites, use of artificial intelligence for data processing and evaluation, or use of blockchain technologies in EO data and services distribution. Some of these evolutions create new opportunities for the Copernicus programme, but others may generate potential constraints on the data policy.

It is in this broad context that the present study defines a set of data policy options, assesses their feasibility and expected impacts under different perspectives (legal, technical, economic, and political/strategic).


3.2. COPERNICUS EVOLUTION SCENARIOS In preparation of its proposal for the Space Programme Regulation, the Commission has assessed the current stage of the Copernicus programme and has developed, in consultation with stakeholders, scenarios for its evolution.

For the scope of this study, the scenarios shown in the following Table 3-1, used by PwC for their recent ex-ante assessment of Copernicus socio-economic benefits, have been taken in consideration. Out of these, Scenario 1 and Scenario 3 are generally applicable for the scope of this study.

However, this report will compare a potential change of the Copernicus data policy only against Scenario 1 (baseline).

Scenario Description Applicability for the scope of this study

Scenario 1 (baseline)

Continuation of the Copernicus programme, with no additional Sentinels

Continuation of satellite missions and services, with an incremental enhancement of the data provision services as the technology progresses

Applicable

Scenario 2 (extreme)

Stop of the programme

• No renewal of assets

• Transfer of ownership of the Sentinels

• Stop of the services

Not applicable, totally unrealistic scenario

Scenario 3 Continuation of the Copernicus programme and expansion of the space-based assets through a number (subject to funding) of HPCMs and enhanced continuity of Sentinels:

• Potential HCPMs: CO2M, Polar Ice Topography, Passive Microwave imagery, SAR L-Band, Thermal Infra-Red, Hyperspectral

• Enhanced continuity of existing Sentinels: in order to meet well-known user requirements, especially in the Land domain, the Second Generation of the Sentinels (e.g. S-2 Second-Gen) might enter the “grey” area between HR and VHR, i.e. 2.5-5 m spatial resolution

Applicable

Scenario 4 Continuation of the programme with an expansion of Security capabilities

• VHR imagery and Near-Real Time availability

• Guaranteed and secured access

Not applicable, as Security capabilities are anyway subject to restricted access

Table 3-1: Copernicus evolution scenarios considered for the scope of this study

3.3. OVERVIEW OF THE CURRENT COPERNICUS DATA POLICY Regulation (911/2010) establishing the Global Monitoring of Environment and Security (GMES-now Copernicus) programme established the high-level objectives for the data and information policy of the Copernicus programme as follows (Art. 9.1):


a) promoting the use and sharing of GMES information and data;

b) full and open access to information produced by GMES services and data collected through GMES infrastructure, subject to relevant international agreements, security restrictions and licensing conditions, including registration and acceptance of user licences;

c) strengthening Earth observation markets in Europe, in particular the downstream sector, with a view to enabling growth and job creation;

d) contributing to the sustainability and continuity of the provision of GMES data and information;

e) supporting the European research, technology and innovation communities.

The Regulation mandated the European Commission to define the details of the data and information policy by a delegated act. This data and information policy was subsequently supplemented via delegated Regulation 1159/2013 of 12 July 2013.

The Copernicus Regulation of 2014 took up the programme objectives of the former GMES Regulation, and according to Art. 23. 2 of the Copernicus Regulation, and stated that “Copernicus data and information shall be made available through Copernicus dissemination platforms, under pre-defined technical conditions, on a full, open and free-of-charge basis”, subject to the following limitations:

a) licensing conditions for third party data and information;

b) formats, characteristics and dissemination mean;

c) security interests and external relations of the Union or its Member States;

d) risk of disruption, for safety or technical reasons, of the system producing Copernicus data and Copernicus information;

e) ensuring reliable access to Copernicus data and Copernicus information for European users.

While Art. 24 of the Copernicus Regulation also set refined requirements regarding the scope and content of the delegated powers for the Commission in detailing the data and information policy, this did not lead to amendments to the previously adopted Delegated Regulation or to a new Delegated Regulation. The Delegated Regulation of 2013 is still in force today as adopted.

The Copernicus data and information policy as defined by the Copernicus Regulation and detailed in the Delegated Regulation has been widely recognized for its principles of full, free and open access. The key elements of this full, free, and open access are that:

1. There are no restrictions on the use (commercial and non-commercial) nor on origin of users (European and non-European);

2. A free of charge version of any dataset is always available on the Copernicus dissemination platform(s);

3. And data and information are available worldwide without limitation in time. Users shall just inform the public of the source of the data and information, and notify any modifications made thereto.

While Art. 3 of the Delegated Regulation establishes that users shall have full, free, and open access to Copernicus data and service information, it directly continues to state that such access is under the conditions laid down in Articles 4 to 10, and subject to the restrictions laid down in Articles 11 to 16 of the Delegated Regulation. Restrictions of access might be based, on:

n The one hand, on legal grounds such as international agreements, IPR and the protection of personal data and

n On the other hand, on the protection of security interests subject to an assessment of the sensitivity of the data and information to be undertaken by the Commission

n Then, according to Art. 17, access limitations can also be set for technical reasons, namely if the capacities of the dissemination systems are not sufficient to serve all user requests.


In the latter case, access to Copernicus resources may be reserved to public services, industry, research organisations and citizens in the Union or in contributing third countries or to contributing international organisations. Access management is implemented through registration.

3.4. MOTIVATION FOR REVIEW OF THE COPERNICUS DATA POLICY On 6 June 2018, the European Commission has released its Proposal2 for a Regulation establishing the space programme of the Union and the European Union Agency for the Space Programme. The proposal is currently under review by the European Council and the Parliament.

Article 52 of the draft Regulation contains the new provision on the Copernicus data and information policy. The draft provision reiterates the free, full and open data policy and states that users may, on a free and worldwide basis, reproduce, distribute, communicate to the public, adapt, modify all Copernicus data and Copernicus information and combine them with other data and information.

Section 2 of draft Article 2 requires the Commission to adopt delegated acts establishing specific provisions as regards the specifications and conditions and procedures for the access to and use of Copernicus data and Copernicus information.

Based on the above circumstances, the Commission will soon have to start with its preparations for a new delegated act, presumably a Delegated Regulation, on the Copernicus data and information policy. The Delegated Regulation needs to enter into force at the latest with the beginning of the new MFF period, thus on 1 January 2021, however taking into account the already on-going process with the European Council and the Parliament and the boundaries of the 2019 Parliament Election, an earlier adoption is likely. According to Art. 105 Section 4 of the draft Regulation, the Commission shall consult experts designated by Member States before the adoption of any delegated act, in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016.

Art. 52 of the draft Regulation describes the framework conditions for the future Delegated Regulation. The Commission will have to consider the limitations to the free, full and open data and information policy:

n the formats, timeliness and dissemination characteristics of Copernicus data and Copernicus information shall be pre-defined;

n the licensing conditions of third-party data and third-party information used in the production of Copernicus Services information shall be abided by where applicable;

n the security limitations resulting from the general security requirements referred to in Article 34(1);

n protection against the risk of disruption of the system producing or making available Copernicus data and Copernicus information shall be ensured;

n the protection of reliable access to Copernicus data and Copernicus information for European users shall be ensured.

Access to and use of Copernicus data and information services will be subject to licenses and notices, including attribution clauses, in compliance with these limitations and the further details to be established in the Delegated Regulation.

For such preparation, the Commission needs to consider the experiences with the data and information policy gained so far since the adoption of the original Delegated Regulation in 2013 as well as the planning for the programme evolution and the overall industry and technology developments as described in Chapter 3.1 above.

2 Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the space programme of the Union and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013, (EU) No 377/2014 and Decision 541/2014/EU, Brussels, 6.6.2018 COM(2018) 447 final


3.5. BENCHMARKING OF THE RELEVANT DATA POLICIES The Copernicus data policy has been developed in the context of international and national data policies. This section assesses three important aspects of such international and national data policies that have influenced - and continue to influence - the Copernicus data policy and its evolution, namely:

n pricing policy

n the trend towards open data

n the approach to access restrictions

In the following, we describe the US Landsat data policy, its evolution and the status of current reflections. The chapter then describes the evolutions of the ESA, EUMETSAT, and ECMWF data policies.

Some of the issues identified in this section are explored in more detail in later sections of this study, as they relate specifically to the Copernicus data policy and its review.

3.5.1. PRICING POLICY – HIGH LEVEL ASSESSMENT Definitions

Full, free and open (FFO) is the common summary of the Copernicus data policy.

This section deals with the free part of the FFO summary, whereby free means free of charge rather than freely available. Free of charge is one of several financial charging options for data in Earth observation and in environmental or geospatial applications more generally.

This section examines the possible financial charging or pricing models that have been used or assessed in relation to Earth observation data. The pricing policy models are as follows:

a) Free data for all users

b) Marginal cost price for all users

c) Market driven, realisable prices for all users

d) Full cost pricing

e) Two-tier pricing

f) Information content pricing

There is no single pricing policy which is right for Earth observation data. Pricing policy should always be the servant of the mission objectives and their achievements.

Pros and cons

This section provides a summary of the arguments in favour and the arguments against different pricing policy options that have been used and discussed in the Earth observation sector. In view of the comprehensive literature available, the section only constitutes a high-level compilation.

a) Free data for all users

Arguments in favour

n Sharing of Earth observation data is encouraged with the lowest possible barriers to this sharing. Data supplied to all users free of charge encourages the widespread use of data and hence contributes to the development of the Earth observation sector.

n The long-standing tradition of free exchange of meteorological data (albeit limited to 5-7 days forecast and not to all data, which are free to meteorological services from member states only) has been highly successful and suggests that other types of Earth observation may benefit from a similar policy.

n Experience in the United States suggests that the free exchange of basic data actually contributes to the commercialisation of the Earth observation sector by encouraging the value-added sector to develop applications on the basis of free data.

n A free of charge policy is simpler to administer.


Arguments against

n If large volumes of data are available free of charge, there may be no discipline in the demands by users for the data. Users may request exceptionally large data sets.

n Where data are supplied free to all users, the costs of providing them have to be recovered through public and/or private sector funding, which would not necessarily be in proportion to the use of the data made by different contributors.

n The crowding out effect may take place, where an increase in government spending (in this case through investment in Copernicus) fails to increase overall added-value because there is an equivalent fall in private sector spending and investment.

n The data provider continues to pay for the production of the data rather than the user.

n If no cost is associated with the data, they may be perceived to have no value.

n Free supply has not generated sufficient recognition of the value and economic impact of the data, particularly satellite data. This makes it more difficult to justify increased budgets for Earth observation satellite programmes. The more successful an Earth observation programme then the greater the costs falling on the data supplier rather than on the data user.

b) Marginal cost price to all users

Arguments in favour

n Making all users paying for data, even a nominal price, encourages active selection and discipline in the requests for Earth observation data.

n The marginal cost price can be set at a sufficiently low level to encourage widespread use of the data.

n The recovery of marginal costs avoids deficits in the data supplier organisation resulting from satisfying extra demands for data.

n Marginal cost prices allow wide ranging and flexible demonstrations of applications in all sectors, some of which may later become operational uses. This allows exploration of the data for uses which the Earth observation instrument may not have been intended (e.g. NOAA AVHRR data for vegetation applications).

Arguments against

n As in the case of providing data free of charge, the bulk of the costs of providing data needs to be provided by the data supplier.

n As with data free of charge, the crowding out effect may take place, where an increase in government spending through Copernicus fails to increase overall demand because there a fall in private sector spending and investment.

n Some users can make commercial gains from the use of the data without making a commensurate contribution to the costs.

n The costs of administering a marginal cost price policy can be disproportionately high in comparison with the revenues generated (indeed, the US policy on data management for global change research states that for small data sets and those data accessed infrequently, the administrative burden of marginal cost recovery may outweigh the benefits of charging such costs, and data may be more efficiently provided at no cost).

c) Market driven or realisable price for all users

Arguments in favour

n Market driven prices can generate a margin which can be re-invested in the respective Earth observation programme, which marginal prices do not.

n For research users, such a policy puts the provision of Earth observation data on the same basis as that of other goods and services, e.g. computing facilities, telecommunications services and professional staff time.

Arguments against


n The data may be too expensive. This can particularly restrict access to the data by researchers, which in turn slows down the rate of scientific progress in Earth observation, and beyond.

n Pricing policies defined by Space agencies are typically concerned with data rather than with the information required by end users.

n A market driven pricing policy can make the acquisition of information derived from long term, global data sets, as well as for real time or fresh data very expensive.

n As most Earth observation data are at present used for governmental purposes, governments should not have the extra financial burden of market overheads in obtaining data (especially if they funded the infrastructure in the first place).

n Such a policy is likely to restrict the use of data by less developed countries, as well as SMEs, NGOs, general public on cost grounds.

d) Full cost price

Arguments in favour

n A full, commercial price would recover all the investment costs.

n It would be possible to investigate easily the development of new satellites or instruments directly geared to user needs.

n Full prices can provide a basis for the sustainable and long-term growth of the Earth observation sector independent of government funding.

Arguments against

n The price levels would be very high, unless the Space and ground segment investment costs were to fall dramatically (e.g. thanks to NewSpace). This would essentially confine the space market to a niche market that can afford it, unless the cost of EO data are significantly reduced

n A full price policy would also fail to recognise the need to invest in Space for scientific and social returns as well as for commercial benefits.

e) Two-tier pricing (i.e. research/ EU public institutions and others3)

Arguments in favour

n EU public institutions are excluded from paying, as they funded the programme in the first place

n The research community, through publications and other channels, is contributing to the public good. Therefore, data for research use should be available for free or for a small charge to cover marginal costs.

n While contributing to the public good researchers in universities have few financial resources to pay for Earth observation data.

n Commercial users should pay a price which reflects the value which they derive from the use of the data.

n Such a policy gives flexibility to adapt to changing circumstances. For example, if research use develops into commercial use over the long term, then a two-tier policy can accommodate this development.

Arguments against

n If Earth observation data are to be widely used, markets must be stimulated and hence any new policies should not undermine commercial markets. A two-tier price policy could undermine the development of commercial markets.

n A two-tier pricing policy requires policing to ensure no abuses of the system occur and could, therefore, be unsustainable. The borders between scientific research in Earth observation and practical, commercial applications are difficult to define and short, quick transitions can be made between the two.

3 Policy applied for example in meteorology to a certain point and also formerly on Envisat and Spot with special low-cost rates for R&D and general public


n A two-tier policy will add administrative costs overall that must be borne somewhere in the data supply chain.

f) Information content pricing

Arguments in favour

n The focus of the approach is on information rather than just data.

n The user would only buy data (or information) which was directly relevant to the application.

n The data delivery system would be geared to an information service and to value added information related to customer needs.

n There is greater scope for the development of data brokers and other commercial contributors to the Earth observation value chain.

n The price would depend on the quantity of relevant information rather than on the volume of raw data.

Arguments against

n Because the focus is on the information content rather than the volume of data, this leads to questions of the value of the information. In turn the value of the information depends on the organisation using the information and the role of the information in the organisation's value chain.

n The disadvantage of an information content pricing policy revolves around how to set the prices. For the example of oil slicks the question becomes one of how much the information is worth to the customer. This in turn depends on the customer's ability to pay and an assessment of the value added by the extra information on the location of oil slicks.

Summary

Table 3-2 below, gives a summary of the arguments in favour and the arguments against the pricing policy options.

Pricing model Arguments in favour Arguments against

Free data for all users

n Encourage maximum use and maximum benefits.

n Provides a firm, known basis for research, operational and commercial applications.

n Highly successful in meteorology.

n Simple to administer.

n No discipline in demands for large data sets.

n No cost may lead to the perception of no value.

n The supplier always pays for the data.

Marginal cost price for all users (also called COFUR - cost of fulfilling a user request)

n Making all users pay for data encourages active selection and discipline in the requests for Earth observation data.

n The recovery of marginal costs avoids deficits in the data supplier organisation resulting from satisfying extra demands for data.

n The bulk of the costs of providing data falls on the data supplier.

n Those users making commercial gains from the use of the data do not make a commensurate contribution to the costs.

n Administrative costs may be disproportionately high.

Market driven price for all users

n Allows for re-investment of profits.

n Makes Earth observation data the same as other goods and services used by users.

n Data costs can be high.

n An extra financial burden for government departments.

n Restrict wide use of the data

Full cost price n Recovers all investment costs. n High costs for data.


Pricing model Arguments in favour Arguments against

n Sustainable long-term growth independent of government funding.

n Fails to recognise the social benefits of data such as data used for research and for humanitarian needs.

Two tier pricing (research and others)

n The research contribution to the public good is recognised through low or zero prices.

n Allows demonstration of applications before market.

n Other users pay a price that reflects the value of the data.

n Requires close policing to control the two tiers.

n Administrative costs are high to check/confirm the two tiers.

Information content

Pricing

n A user buys only directly relevant data.

n The focus is on the information and its value.

n Greater scope for value added applications.

n Price depends on quality of data and information.

n Who decides on the value of the information and the contribution of the data?

Table 3-2: Pros and cons of different pricing policy options

3.5.2. ACCESS POLICY There is a strong momentum in society at large to open data, particularly data that has been collected by governments. The basic principle is that once the costs in collecting data have been incurred then the maximum value in the data can be subsequently achieved by the widest use of those data. An example of a basic open data policy for government data is the G8 Open Data Charter4 agreed in 2013 as a plan to orientate all of the G8 member state governments’ data to a position of openness by default.

There is no single agreed definition of open data. In the UK, the Open Data Institute5 defines open data as:

“… information that is available for anyone to use, for any purpose, at no cost. Open data has to have a licence that says it is open data. Without a licence, the data can’t be reused.”

The European Union Open Data Portal6 defines open data as:

“Data are free to use, reuse, link and redistribute for commercial or non-commercial purposes.”

There is a trend in Earth observation to open data7. This is the case for medium and low spatial resolution data, including all current Copernicus data from the Sentinels. The Earth observation data sets that are not open and free of charge are in general very high spatial resolution (VHR) data, where VHR here it is meant below 1-meter spatial resolution.

4 Open Data Charter. Improving the transparency and accountability of government and its services. UK Cabinet Office, 17 June 2013. The text can be found under https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/207772/Open_Data_Charter.pdf 5 http://theodi.org/guides/what-open-data 6 https://open-data.europa.eu/en/data/ 7 Harris R and Baumann I (2015) Open data policies and satellite Earth observation, Space Policy 31, 44-53.


This section reviews briefly the perspectives on open data provided by organisations that have views on data in general and those organisations that have experience of Earth observation data. For each organisation listed below a brief summary is given of its position on open data.

The first section summarises the positions of organisations that are general in nature and the second section summarises the views of those organisations involved in Earth observation. Some aspects of these statements, namely regarding limitations and restrictions, are analysed in more detail later in this report.

General positions on open data

G8 Open Data Charter8. The G8 meeting held in 2013 agreed in an Open Data Charter that the G8 member states will orientate their own government data to a position of openness by default. The G8 Open Data Charter was followed by activities to establish more inclusive and representative open data principles, including by the Open Government Partnership’s (OGP) Open Data Working Group. The Open Data Charter recommends that no administrative barriers such as registration requirements are put in place because this can deter widespread use of data.

OECD Guidelines for Research Data9. The Organisation for Economic Cooperation and Development (OECD) has agreed a set of principles and guidelines at ministerial level10 that require research data from public funding sources to be open, which is itself defined as access on equal terms for the international research community at the lowest possible cost, preferably at no more than the marginal cost of dissemination.

International Oceanographic Commission data policy 11 . The core of the International Oceanographic Commission (IOC) data policy is that member states of the IOC should provide timely, free and unrestricted access to all data and products generated under the auspices of IOC programmes, including Earth observation data where appropriate.

US Open Data Policy12. The US Open Data Policy is based on the presumption of openness and applies to all data produced by the US Federal government and its agencies.

US Global Change Research Program data policy13. The overall purpose of the US Global Change Research Program (USGCRP) data policy is to facilitate full and open access to data and information that is used as part of global change assessment activities.

Aarhus Convention14. Under the Aarhus Convention, public authorities (i.e. state, regional or other government entities) in Europe shall, in response to a request for environmental information, provide the information to the public within the framework of national legislation. Public authorities may charge for the information, but this charge should not exceed a reasonable amount, although “reasonable” is not defined.

8 Open Data Charter. Improving the transparency and accountability of government and its services. UK Cabinet Office, 17 June 2013. The text can be found under https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/207772/Open_Data_Charter.pdf. 9 OECD Guidelines and Principles for Access to Research Data from Public Funding, OECD, Paris, 2007. The text can be found under http://www.oecd.org/science/sci-tech/38500813.pdf. 10 The principles and guidelines were agreed by ministers of the 34 OECD countries. 11 International Oceanographic Commission (IOC) Oceanographic Data Exchange Policy. Resolution IOC-XXII-6 adopted during the 22nd session of the IOC Assembly, 24 June – 4 July 2003. The text can be found under http://www.iode.org/index.php?option=com_content&view=article&id=51&Itemid=100040. 12 Open Data Policy – Managing Information as an Asset, Executive Office of the President, 9 May 2013. The text can be found under http://www.whitehouse.gov/sites/default/files/omb/memoranda/2013/m-13-13.pdf. 13 Data Management for Global Change Research: Policy, US Global Change Research Program (also known as the Bromley Principles). The text can be found under http://www.gcrio.org/USGCRP/DataPolicy.html. 14 Convention on access to information, public participation in decision-making and access to justice in environmental matters, Aarhus, Denmark, 25 June 1998. The text can be found under http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf


European Environmental Information Directive 15 . The Environmental Information Directive implements the obligations of the Aarhus Convention on access to environmental information at the EU level.

European Public Sector Information (PSI) Directive16. The PSI Directive provides for the re-use of documents17 (including data) produced by the public sector in Europe on a free of charge and open basis.

European INSPIRE Directive18. European Union Member States should make available, as a minimum and free of charge, the services for discovering and, subject to certain specific conditions, viewing spatial data sets. Any charges applied for data should not exceed the cost of collection, production, reproduction and dissemination together with a reasonable return on investment.

European Union Open Data Portal19 (EU ODP) provides access to a range of data from the European Union institutions and other EU bodies free of charge. These open data can be used and reused for commercial or non-commercial purposes. All EU institutions are invited to make their data publicly available whenever possible. This means that data can be reused free of charge and without any copyright restrictions. The portal makes the EU institutions and other bodies more open and accountable.

Earth observation positions on open data

UN Remote Sensing Principles20. The UN principles are not explicit on full and open access to data but there is a theme in the principles of encouraging widespread access to satellite remote sensing data for the benefit of all. The principles were adopted by a Resolution of the UN General Assembly in December 1986 after almost 15 years of discussion and preparation. The principles emphasise throughout the need to promote and strengthen international cooperation in remote sensing, to enable the benefits of remote sensing to be achieved by all countries, to encourage sharing of the opportunities and capabilities to acquire and use remote sensing data and to do so on a non-discriminatory basis. However, beyond the principles lies the concern of many states at the time that the principles would give states with remote-sensing capabilities even more justification to sense the activities of other states on foreign territory. The important achievement of the principles was that States are free to conduct remote sensing also of another State territories, without the need for prior consent of the sensed states. Regarding data access, Art. XII of the Principles states that, as soon as the primary data and the processed data concerning the territory under its jurisdiction are produced, the sensed State shall have access to them on a non-discriminatory basis and on reasonable cost terms. The sensed State shall also have access to the available analysed information concerning the territory under its jurisdiction in the possession of any State participating in remote sensing activities on the same basis and terms, particular regard being given to the needs and interests of the developing countries. Special provisions are available in Art. X and XI concerning data on environmental matters (Art. X) and natural disasters (Art. XI). In both cases, states having relevant data shall disclose such information to States concerned, in

15 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 16 Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information. The text can be found under http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003L0098:20130717:EN:PDF. 17 The PSI Directive uses a definition of “document” that is common in several Commission Directives. According to Article 2 Section 3 of the PSI Directive “document” means: (a) any content whatever its medium written on paper or stored in electronic form or as a sound, visual or audio-visual recording); (b) any part of such content. 18 Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE). The text can be found under http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:108:0001:0014:EN:PDF 19 The EU ODP was set up in 2012, following European Commission Decision 2011/833/EU on the reuse of Commission documents. 20 Principles relating to remote sensing of the Earth from space, 95th Plenary meeting of the General Assembly of the United Nations, A/RES/41/65, 3 December 1986. The text can be found under http://www.un.org/documents/ga/res/41/a41r065.htm.


case of disasters as promptly as possible. In contrast to Art. XII, Art. X and XI do not mention that such data provision shall be on reasonable cost terms.

GEOSS data sharing principles21. The first of the three GEOSS data sharing principles requires full and open exchange of data, metadata and products shared within GEOSS, while recognising relevant international instruments and national policies and legislation

International Disaster Charter22. The International Disaster Charter enables full, free of charge and open data to be provided to disaster-related agencies that make a formal request for Earth observation data through an authorised user.

US Earth Observations Strategy. The US Earth Observations Strategy 2013 adheres to the principle that access to data that are managed or paid for using federal government funds should be open to the public as soon as possible after collection, in a non-discriminatory manner, and generally free of charge, although agencies may charge the cost of fulfilling a user request (COFUR). All data produced by the Federal government should be provided to users with no restrictions and no copyright protection.

NOAA NESDIS data policy23. The NOAA NESDIS data policy recognises the need for full and open exchange of environmental satellite data, metadata and products but does not unequivocally define a full and open position. Landsat data policy24. The Landsat data policy is for full, free of charge and open access to all the Landsat data archives in line with US government policy including the US Earth Observations Strategy and the US Open Data Policy. The review of Landsat data policy is discussed elsewhere in this report.

ESA Data Policy25. ESA Earth observation data from the ERS, Envisat and Earth Explorer missions are available on an open and non-discriminatory basis. The data are split into two major groups: the free data set and the restrained data set.

EUMETSAT data policy26. EUMETSAT operates a partial full, free of charge and open data policy, that is some of its data are provided on a full, free and open basis and some are restricted to National Meteorological Services, the funders of EUMETSAT.

All of the above-mentioned policies are summarised in the table below.

Positions

UN Remote Sensing principles The UN principles are not explicit on full and open access to data but there is a theme in the principles of encouraging widespread access to satellite remote sensing data for the benefit of all.

21 GEOSS Data Sharing Principles. The text can be found under http://www.earthobservations.org/geoss_dsp.shtml. 22 Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters. The text can be found under http://www.disasterscharter.org/charter. 23 NOAA National Environmental Satellite, Data, and Information Service (NESDIS) Policy on Access and Distribution of Environmental Satellite Data and Products, 17 February 2011. The text can be found under http://www.ospo.noaa.gov/Organization/Documents/PDFs/NESDIS_Data_Access_Distribution_Policy.pdf 24 US Land Remote Sensing Policy Act 1992, PL 102-555 and subsequent modifications. The Text can be found under http://www.spacelaw.olemiss.edu/library/space/US/Legislative/Public_Laws/102-555%20-%20Land%20Remote%20Sensing%20Policy%20Act.pdf; Landsat Data Distribution Policy. The text can be found under http://landsat.usgs.gov/documents/Landsat_Data_Policy.pdf 25 ESA Data Policy for ERS, Envisat and Earth Explorer Missions, ESA/PB-EO(2010)54. A simplified version of the text can be found under https://earth.esa.int/documents/10174/296006/Revised_Simplified_EO_Data_policy_03102012.pdf/7df6dcc0-fe19-428c-bbf3-4335dee70fe4?version=1.0. 26 EUMETSAT Principles on Data Policy, July 2013. Created originally in Council Resolution EUM/C/98/Res.IV and amended in Council Resolution EUM/C/57/05/Res. III. The text can be found under https://www.eumetsat.int/cs/idcplg?IdcService=GET_FILE&dDocName=pdf_leg_data_policy&allowInterrupt=1&noSaveAs=1&RevisionSelectionMethod=LatestReleased.


GEOSS data sharing principles The first of the three GEOSS data sharing principles requires full and open exchange of data, metadata and products shared within GEOSS, while recognising relevant international instruments and national policies and legislation.

International Disaster Charter The International Disaster Charter enables full, free of charge and open data to be provided to disaster-related agencies that make a formal request for Earth observation data through an authorised user.

US EO Strategy The US Earth Observations Strategy 2013 adheres to the principle that access to data that are managed or paid for using federal government funds should be open to the public as soon as possible after collection, in a non-discriminatory manner, and generally free of charge, although agencies may charge the cost of fulfilling a user request (COFUR). All data produced by the Federal government should be provided to users with no restrictions and no copyright protection

NOAA NESDIS Data Policy The NOAA NESDIS data policy recognises the need for full and open exchange of environmental satellite data, metadata and products but does not unequivocally define a full and open position

Landsat data policy The Landsat data policy is for full, free of charge and open access to all the Landsat data archives in line with US government policy including the US Earth Observations Strategy and the US Open Data Policy. The review of Landsat data policy is discussed elsewhere in this report

Sentinel Data Policy Sentinel data as well as the products generated via the internet are full, free of charge and open

ESA Data Policy ESA Earth observation data from the ERS, Envisat and Earth Explorer missions are available on an open and non-discriminatory basis. The data are split into two major groups: the free data set and the restrained data set

EUMETSAT Data Policy EUMETSAT operates a partial full, free of charge and open data policy, that is some of its data are provided on a full, free and open basis and some are restricted to National Meteorological Services, the founders of EUMETSAT

The open data statements and policies reviewed above are predominantly in favour of full, free of charge and open access to data. The closer such statements are to the general, for example the G8 Open Data Charter, the clearer they are on these open principles. The closer they are to operational data supply, for example NOAA NESDIS, the less they are inclined to be specific on complete open access to all data.

3.5.3. CONDITIONS AND RESTRICTIONS While the policies summarised above have a clear orientation to open data as a general principle, many of the policies or legal instruments derived from them nevertheless allow for exceptions to the general principle of open data. Few open data policies are without any condition or restriction. For example, in the case of the G8 Open Data Charter, exceptions are allowed, including on grounds of national and international legislation, intellectual property, personally identified data and sensitive information. The grounds cited in the diverse international and national data policies for exceptions are listed below in order of the number of times they are cited: the most frequent exceptions are cited first:

n International law;

n International relations and foreign policy;


n National security;

n Defence;

n National legislation;

n Intellectual property rights;

n Personal data protection;

n Commercial and industrial confidentiality;

n Statistical confidentiality;

n Legal confidentiality;

n The course of justice;

n Contractual issues;

n Financial viability;

n Proprietary interests;

n Indigenous rights;

n Conservation of sensitive ecological, natural, archaeological, or cultural resources;

n Availability of resources; and

n Organizational policies.

No data policy has all these exceptions, but taken together the above list is both extensive in scope and potentially very restrictive. Few of the policies on open data have explicit statements on how the exceptions are to be handled in practice. Some terms for access restrictions, such as international law, are very broad, while others such as foreign policy, national security or defence are subject to rapidly changing political considerations and assessments.

3.5.4. US LANDSAT DATA POLICY AND CURRENT REVIEW Landsat-1 was launched in July 1972. At the time, it was called the Earth Resources Technology Satellite (ERTS-1). Landsat 1 and its successors Landsat 2 and 3 were all essentially technology demonstrators. Images were available at about US$200 per scene. During the 1970s, Landsat data were distributed on magnetic tape and it was common for large format prints of Landsat images to be used. Therefore, the prices for Landsat data included both the data and printed images.

There was already interest in the US government in the commercial potential of Landsat data and as early as May 1978 Presidential Directive 37 was published stating the US national policy of encouraging domestic commercial exploitation of space capabilities. The motivation for commercialisation increased in the US in subsequent years and in 1984 the Land Remote Sensing Commercialisation Act was passed by the US Congress authorising commercialisation of the US land Earth observation programme, which meant Landsat in practice. A contract was awarded to EOSAT for data sales.

However, the commercialisation of Landsat was not a success. The prices for Landsat data set by EOSAT were designed to recover the costs of the programme. Digital Multispectral Scanner (MSS) images at 80 m spatial resolution costed US$650 per scene and Thematic Mapper (TM) images at 30 m spatial resolution costed over US$4000 per scene.27 There was a dramatic drop in the number of scenes ordered. In the early years of Landsat most of the product sales were in the form of photographic products. Figure 3-1 shows the fall in Landsat photographic product sales in the period 1979 to 1989 from the EROS Data Centre in South Dakota, the main distribution centre for US Landsat data.

27 Ref ppt


Figure 3-1: Sales of Landsat photographic products from the EROS Data Centre, South Dakota, USA28.

There was a growth in the number of Computer Compatible Tapes (CCTs) ordered from the EROS Data Centre, from 4,139 in 1980 to 8,530 in 1988. This growth contributed to an increase in revenue from Landsat data sales (see figure 3-2). Most of the orders were from the US government rather than the commercial sector. Nevertheless, the increase in revenue did not meet the objective of covering the satellite mission costs.

Reception of Landsat data was organised by regional ground stations. The costs of establishing these ground stations was high and the increase in Landsat data prices also decreased the enthusiasm of organisations to invest in ground data reception infrastructure.

The Land Remote Sensing Commercialisation Act of 1984, which was designed to commercialise Landsat, was repealed by the Land Remote Sensing Policy Act of 199229. The new Act noted that the high cost of Landsat data had impeded the use of the data for scientific purposes and for other public sector applications, and declared that full commercialisation of the Landsat programme was not feasible in the foreseeable future and thus should not serve as a near-term goal of US policy on land remote sensing.

After the 1992 Act, the prices charged for digital Landsat data were the marginal cost at about US$600 per scene. In the US, the marginal cost was termed the Cost of Fulfilling a User Request (COFUR), that is the cost of writing the data to magnetic tape and shipping it to the user. Over subsequent years, the growth in the availability, use and capacity of the internet meant that COFUR dropped to zero. There was (almost) no marginal cost, as the data could be placed on a server and downloaded by the user.

In 2008, the US made a policy change to provide all Landsat data in archive free of charge over the internet. This resulted in a massive increase in the number of orders for Landsat data. The Figure below shows the increase in scenes distributed from Landsat archives from 2007 to 2013 and particularly since the introduction of a zero-charge policy for data distributed over the internet.

28 Source: Draeger, W C, T M Holm, D T Lauer and R J Thompson (1997) The availability of Landsat data: past, present and future, Photogrammetric Engineering and Remote Sensing 63(7), 869-875. 29 PL 102-555 ref

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Figure 3-2: Landsat scenes distributed, 2007 – 2013. Source: Group on Earth Observations

Currently, the US Government is reviewing the Landsat data policy, once again exploring the possibility of reintroducing charges for accessing Landsat data. It was reported by the Landsat Advisory Group (LAG) at the National Geospatial Advisory Committee (NGAC) meeting in April 2018 that the US Department of Interior and the U.S. Geological Survey (USGS) have asked the LAG to look at whether the costs of Landsat could be recovered from users. The general mission of the LAG review is to

“Provide advice to the Federal Government … on the requirements, objectives and actions of the Landsat Program as they apply to [the] continued delivery of societal benefits for the Nation and the global Earth observation community. “

The Department of the Interior recognises that the issue of charges for Landsat data has been investigated in the past and says that it is seeking to understand better the Landsat user community’s needs in terms of “willingness-to-pay.” The report will consider recent technological developments in land remote sensing and explore various user fee options. It will outline the pros and cons of various Landsat data policies to public and private sector users including continued U.S. access to data from Europe’s Copernicus Sentinel satellites and prospects for public-private partnerships for future U.S. land-imaging missions.

Submission of the LAG report is expected for end of 2018. DOI and USGS will consider the LAG report, the perspective of partners, stakeholders, the user community, and political guidance prior to formulating any changes in the Landsat data policy. A decision will likely be taken in late 2019.

The last time that the Landsat Advisory Group was asked to review charging for Landsat data was in 2012. The LAG produced a report then on Landsat data use and charges and argued that charging for Landsat data would:

n Severely restrict data use

n Violate existing OMB (Office of Management and Budget) guidelines, Federal law, OSTP (Office of Science and Technology Policy) and the US National Space Policy

n Require a statutory change

n Cost more than the amount of revenue generated by the charges

n Create a circular payment basis for public agencies

n Stifle innovation and business activity that creates jobs

n Inhibit data analysis in scientific and technical analyses

n Negatively impact international relations relating to national, homeland and food security


n Negatively impact foreign policy and US standing as the leader in space technology

Accordingly, the report concluded that Landsat data should continue to be distributed at no cost.

As far as information is available, the current majority in the Landsat Advisory Group continues to favour the continuation of Landsat data provision free of charge. However, the report will also consider how the industry landscape has changed in the last years due to the expansion of commercial satellite providers.

3.5.5. ESA EXPERIENCE WITH ERS AND ENVISAT ESA’s experience with data policy for its Earth observation satellites ERS and Envisat has shown a changing perspective on open data. The original ERS data policy established memoranda of understanding with national and foreign ground receiving stations plus inter-agency agreements for access to data. For commercial sales of ERS data ESA established an exclusive agreement with the Eurimage-Radarsat-SPOT consortium (the ERS Consortium) which became the sole organization to sell ERS data. This structure was delivered by ESA because of the views of the ESA member states that there was a need for some return on investment and potential commercial value to be gained from selling ERS data, especially from the SAR instrument.

The theme of return on investment was continued into the data policy for Envisat. The objectives of the Envisat data policy were to maximise the beneficial use of Envisat data and to stimulate a balanced development of science, public utility and commercial applications, consistent with the Envisat mission objectives. The Envisat data policy recognised two categories of use of the data, namely:

n Category 1 use. Research and applications development use in support of the mission objectives, including research on long term issues of Earth system science, research and development in preparation for future operational use, certification of receiving stations as part of the ESA functions, and ESA internal use.

n Category 2 use. All other uses which do not fall into category 1 use, including operational and commercial use.

ESA instituted a distribution scheme which distinguished between these two categories of use. Distribution for category 1 use was under the control of ESA directly. Data and products were ordered from ESA and shipped to users direct from ESA. For category 2 use, ESA appointed two competing distributing entities, EMMA and Sarcom, to carry out market development functions and encourage the growth and widespread use of Envisat data.

The prices charged for category 1 use were set at a low level, at or close to the marginal cost of reproduction and delivery of the data. For category 2 use the prices charged by ESA to the two distributing entities were near the prices charged for category 1 use, but the prices charged by the distributing entities to their customers were set by those distributing entities themselves in a competitive market place. The idea here was to encourage market development by the two distributing entities.

After agreement in 1998, the Envisat data policy was retrospectively applied to data from the two ERS missions.

In 2010, ESA reviewed its Earth observation data policy based on experience with ERS and Envisat and decided to distinguish between two groups of datasets: the free data set and the restrained data set. Data from both types of datasets are provided free of charge and therefore the ESA Earth observation data policy changed to FFO. A user registration is needed for accessing the free dataset. Access to the restrained data set can be gained after a project proposal to ESA allowing ESA to define an archived product/programming quota for the project. The ESA Earth observation data policy is derived from the FFO principles of the Sentinel Data Policy and is applied to all ESA Earth observation mission data, including data from the ERS and Envisat missions.

The aspiration of ESA Member States to see a return on investment has not been met by real data orders. In that sense, the situation in Europe closely mirrors that in the USA with its views on Landsat.

3.5.6. REVIEW OF EUMETSAT DATA POLICY The EUMETSAT Data Policy contains two elements:


n EUMETSAT Principles on Data Policy;

n Implementing Rules for particular EUMETSAT systems.

The EUMETSAT Principles on Data Policy provide that, in accordance with the World Meteorological Organization (WMO) Resolution 40, a set of data, products and services to be determined by Council will be available on a free and unrestricted basis as 'essential' data and products.

Other ('non-essential') sets of data, products and services to be determined by the Council are, according to the EUMETSAT Principles on Data Policy, made available to different user groups for certain use cases without charge.

All other users may receive sets of ('non-essential') data, products and services under conditions defined by the Council. These conditions may involve the payment of fees. As from 01 January 2019 the fee structure for these data, products and services has been updated.

The above Principles are generic and apply to all present and future EUMETSAT systems.

The conditions, if any, on the use of certain data, products and services are specified in implementing rules. Implementing rules specifying the EUMETSAT Principles on Data Policy have been adopted for a variety of EUMETSAT systems30.

This table provides the list of the Meteosat and Metop data and services subject to a licensing agreement.

Data subject to licensing terms and conditions

CATEGORY SERVICE TIMELINESS (REPEAT CYCLES/SLOTS)

Near Real-time Data Services

Meteosat Rapid Scanning Service 5-min


Meteosat High Rate SEVIRI 15-min, 30-min and 1-hourly


Meteosat Low Rate SEVIRI 30-min and 1-hourly


Metop Global IASI Level 1 All Spectral Samples

135 minutes


Metop Global GOME Level 1 135 minutes


Metop Global ASCAT Level 1 135 minutes

Archived/Historical Data Service

Meteosat archived data — the complete historical archive of Meteosat

first and second-generation image data

Data older than 24 hours

Table 3-3: Data subject to licensing terms and conditions in EUMETSAT data policy

Taking the Meteosat data as an example of implementation of EUMETSAT data policy, a set of 'essential' Meteosat Data is freely available to all users. 'Non-essential' data, as defined by the EUMETSAT Data Policy (see Table 3-3), are subject to license terms and conditions. The type of licence required depends on the user group, the selected data usage and the set of 'non-essential', or licensed data the users wishes to receive. For certain 'non-essential' Meteosat data and products, for example, the Implementing Rules for Meteosat Data and Products provide that these data and products shall be subject to fees and licensed by the National Meteorological Service of the respective country under the

30 On the basis of these Principles, detailed rules have been established for: Meteosat Data and Products including IODC Data; Meteosat DCP Channels; SAF Deliverables; Operational SAF Deliverables; Metop Data and products; Jason-2 and Jason-3.


EUMETSAT standard licensing conditions. The following table provides with a synthesis of EUMETSAT data policy applied to Meteosat data.

Data type Data Policy

EU NMS Non-EU NMS Research, Educational, Private Users

Commercial Users

ECMWF

‘Essential’ Data

Full Free Open (FFO)

Non-Essential Data

Free, Full, Redistribution subject to licensing

Free for data latency of > 3 hours;

Free access for data latency <3 hours in case of major disasters;

Special agreements set with NMS of States providing equivalent satellite data;

Redistribution of the original data not allowed.

Free for its own use;

Redistribution of the original not allowed.

Free for data latency of > 3 hours;

Against a fee for data latency <3 hours;


Free for its own use;


Definitions

“Essential’ data= defined in accordance to World Meteorological Organization (WMO) Resolution 40 (Cg-XII), are in this case the hourly Meteosat data, all derived products and advance images.

Hourly Meteosat data= those nominal full disk repeat cycles of Meteosat Data referenced by EUMETSAT in time to each clock hour (UTC).

Latency= the difference between the time reference attached by EUMETSAT to Meteosat Data or Product and its availability for user access under a given service.

NMS= National Meteorological Service, service responsible at national level, in conformity with its legal status, for the gathering, classification and production of meteorological information in the national interest, and responsible at international level for participating in WMO programmes.

Table 3-4: EUMETSAT Data Policy- Meteosat data example

3.5.7. REVIEW OF ECMWF DATA POLICY The European Centre for Medium-Range Weather Forecasts (ECMWF) offers a variety of datasets, subject to different license terms (depending on the user group).

For so-called archive datasets, access rights differ depending on the user group.

n ECMWF Member States are entitled to list and download everything in the ECMWF archive.


n Non-members may buy an archive data license for particular data sets, which are made available under a licensing agreement. Several types of licenses are available (commercial, non-commercial).

n The general public may browse and download archive datasets that are made available free of charge, some of which may require the acceptance of licensing terms and conditions.

For real-time forecasts,

n National meteorological services of ECMWF Member and Co-operating States are granted full access to ECMWF products and services.

n All other users can gain access to ECMWF forecast products under one of the following licence agreement types:

o Commercial use: users can use the forecast products for their own internal purposes. For the standard and max charge licences, they can also use the products to deliver value-added services to end users and broadcasters.

o Non-commercial use: Non-commercial licences are available as follows:

§ For the NHMS licences, National Meteorological and Hydrological Services (NMHS) who are a member of the World Meteorological Organisation (WMO) but are outside the ECMWF Member and Co-operating States. Licensees can use the forecast products to fulfil national governmental obligations related to the protection of life and property, or for research projects and educational use, provided that any such activity is carried out strictly on a non-commercial basis;

§ For the research and education licence, those involved in research field experiments and verification comparison projects;

§ For the satellite data providers, space agencies and other satellite data producers in exchange for satellite observations. Licensees can use the forecast products for satellite data processing only.

Some datasets with specific characteristics are publicly available and/or are to be made available to certain user groups. This primarily concerns:

n WMO Essential (e.g. data on tropical cyclones): Publicly accessible. n WMO Additional: these products are aimed at National Meteorological and Hydrological Services

NMHS. Access is restricted to WMO members. n ACMAD: These products are available to the African Centre of Meteorological Application for

Development (ACMAD) countries. n SWFDP: These products are available to participants in the WMO Severe weather forecast

demonstration project (SWFDP).

3.6. THE VALUE OF OPEN DATA (BY PWC) The goals of open data policies are linked to the willingness of more transparency in public administration and the willingness to foster the use of data. This last point is particularly important as illustrated by the example of the Landsat programme, which experience demonstrates that open data has a very positive impact on user uptake and data utilisation. Nevertheless, this does not demonstrate the value of open data directly. The value of open data gathers a raising interest in academics’ discussions, indeed, “open data does not have any value per se since data becomes valuable when it is used, meaning that the value of the data then changes from one user to another”. In such a context, the traditional price to market approach does not apply since the value of the data is not linked to its production cost. As already stated, even if there are fix and variable costs to produce and make data available, data are by nature non-rivalrous goods since the download and usage of a data by a user A does not prevent user B to access and use this data. Then, the marginal cost of any additional user is zero. In this context, the valuation of open data needs to be carried out at users’ communities’ level to understand how they value access to these data for free. Moreover, open data leads in general, on the top of certain economic impacts, large societal and environmental benefits for the society that are not taken in the equation by financial assessment of “return on investment” approach applied to open data policies. Having a programme such as the Copernicus programme providing satellite-based imagery, in-situ data, basic information products and advanced modelling for free is expected to lead to non-


negligible benefits for the society in a context where public authorities and research centres & universities have generally very low willingness-to-pay due to budget pressure. If all this information would not have been provided for free, there is very high probability that it would have prevent most of these actors to access it, as no evidence demonstrates that the private would have been capable (and willing) to provide all these elements at European and global scale at an affordable price.

When putting together the increase of data usage and the potential impacts enabled by the availability for free of data, it seems that open data policy, and so the Copernicus programme, seems to have a positive impact on the society. The PWC report of “Copernicus ex-ante benefits assessment”, which represents the baseline for this study, was aimed to understanding the value created to the wider society by the availability for free of Copernicus data and information, with a particular focus on the societal and environmental value created thanks to the Copernicus programme.


4. OPTIONS IDENTIFICATION

4.1. APPROACH AND KEY DIMENSIONS As outlined in the SoW of this study, there are three basic approaches to the Copernicus data policy for the next MFF post-2020:

n Continue the status quo with a full, free and open data policy (baseline option) n A restricted data policy n A mixt approach where the criteria for distinct data policies must be clearly identified

Generally speaking, the following, non-exhaustive, types of conditions or restrictions are conceivable:

n Restrictions due to Geography/ origin of recipients (e.g. EU Member States, countries with a Copernicus agreement, Rest of the World)

n Access and use against fees

n Restrictions due to type of use (e.g. own use, redistribution of data)

n Restrictions due to type of users/ organisation (e.g. according to defined user categories in Copernicus Regulation)

n Restrictions due to nature of data/ service/ product e.g. by:

o Resolution (i.e. VHR < 2.5 m)

o Copernicus Sentinels (Sentinel 1, 2, 3, 4, 5, 6, and Expansion Missions)

o Copernicus Services (Land, Emergency, Atmosphere, Marine, Security, Climate Change)

o Copernicus Contributing Missions (Cosmo SkyMed, SPOT, etc.)

o Archive vs. real time, etc.

n Restrictions due to security, defence and foreign policy considerations

The European Union is, within the boundaries of applicable international and European law, principally free to define – and to redefine – the data policy for its Copernicus Programme. Within this frame, the EU can also introduce additional restrictions regarding access and use of the data or it can select a mixed approach, under which the full, free open data policy would continue for certain type of data, while for other type of data a different and more restrictive approach would apply.

As shown earlier, most open data policies adopted on international or national level stipulate conditions and restrictions. The example of the US Landsat Data Policy described in Chapter 0 shows that data policies are subject to review and may be changed following technological, market or political developments or simply following changes in policy.

In the following section, a set of priority options analysed under the scope of this study are defined. The analysis of feasibility of implementing each of the above restrictions and the associated implications are then discussed in the following Chapters. Then based on such an analysis, several combinations of feasible restrictions might be identified and be selected as potential alternative options to the status quo.

4.2. OPTIONS DEFINITIONS Based on the indications received by the Commission, the following three options are selected for a more detailed evaluation:

1. Access allowed only for EU users

2. Access allowed against a fee for all users with the exception of EU Public Institutions

3. Access allowed for all users (EU and non-EU) but with no right to redistribute the data, except for organisations that received a corresponding agreement with the Commission


Under the first option, access to and use of Copernicus data and information services would be provided only to users from the EU. Users from non-EU countries would not have any access to Copernicus data and information services. There are, however, several alternatives in this regard, for example, that users from non-EU countries could receive access based on bilateral agreements between the EU and the respective country or that users from non-EU countries would have to pay a fee.

Under the second option, access to and use of Copernicus data and information services would be allowed against charges, with the exception of EU Public Institutions. There would be no differentiation with regard to the origin of users, meaning that both users from the EU and from non-EU countries would be subject to the same applicable charges. Chapter Error! Reference source not found. above described the various methods for charging access and use of Earth observation data, e.g.:

n Marginal cost price for all users;

n Market driven, realisable prices for all users;

n Full cost pricing;

n Two tier pricing;

n Information content pricing.

In principle, all of these options would be conceivable. The chapter also provided the key arguments for or against the respective charging method, which should be duly taken into account in the further evaluation.

Under the third option, access to and use of the data would continue to be free-of-charge for all users, including from non-EU countries. However, users would not have the right to re-distribute the data. Distribution of data would only be made by organisations which have concluded a corresponding agreement with the Commission. Potential organisations allowed to distribute Copernicus data could be the European Space Agency, EUMETSAT, the commercial operators of the DIAS as well as Member States and the operators of national Copernicus data distribution platforms within the Copernicus Collaborative Ground Segment.

In the following chapters, the legal, technical and socio-economic analyses of these options are presented in turn.


5. LEGAL ANALYSIS This chapter analyses the situation regarding legal feasibility of a potential extension of limitations to the Copernicus data policy. It builds upon the legal background presented in the previous chapter. The analyses address implications both under international law as well under the applicable EU legal framework. As an introduction, a brief overview on the current exceptions and limitations possibilities under the Copernicus Delegated Regulation is provided.

5.1. COPERNICUS DELEGATED REGULATION - CURRENT EXCEPTIONS AND LIMITATIONS POSSIBILITIES

Regulation (EU) No.911/2010 of 22 September 2010 (2010 GMES Regulation) establishing the GMES (Global Monitoring for Environment and Security) programme authorised the European Commission to adopt a dedicated data policy. This data policy has been implemented via Delegated Regulation (EU) No.1159/2013 of 12 July 2013 (the Copernicus Data Policy).

As noted above, the Copernicus Data Policy requires Copernicus data and information to be made available on a full, open and free of charge basis. However, Art. 3 of the Delegated Regulation subjects the general policy approach to restrictions as laid down in Articles 11 to 16 of the Delegated Registration.

According to Art. 11 (Conflicting rights), the Commission can take measures restricting the dissemination of certain data or service information in case such dissemination would:

n Be in conflict with international agreements or

n Be in conflict with the protection of intellectual property rights, or

n Affect in a disproportionate manner the rights and principles recognized in the Charter of Fundamental Rights of the EU, such as the right for private life or the protection of personal data.

According to Article 12 (Protection of security interests) the Commission shall restrict dissemination, where dissemination would present an unacceptable degree of risk to the security interests of the Union or its Member States. The Commission shall assess the sensitivity of data and service information based on the sensitivity criteria described in the Delegated Regulation, whereby Art. 13 relates to data and Art. 14 to services information.

Regarding data, restrictions are possible for data produced by a space infrastructure fulfilling at least one of the characteristics of spatial resolution and spectral bands described in an Annex to the Delegated Regulation. If this is the case, the Commission shall assess the sensitivity based on the following criteria:

(a) the technical characteristics of the data, including spatial resolution and spectral bands;

(b) the time between acquisition and dissemination of the data;

(c) the existence of armed conflicts, threats to international or regional peace and security, or to critical infrastructures within the meaning of point (a) of Article 2 of Directive 2008/114/EC in the area the GMES dedicated data relate to;

(d) the existence of security vulnerabilities or the likely use of GMES dedicated data for tactical or operational activities harming the security interests of the Union, its Member States or international partners.

Regarding service information, the following criteria apply:

(a) the sensitivity of inputs used in the production of service information;

(b) the time between acquisition of inputs and dissemination of service information;

(c) the existence of armed conflicts, threats to international or regional peace and security, or to critical infrastructures within the meaning of point (a) of Article 2 of Directive 2008/114/EC in the area the service information relates to;

(d) the existence of security vulnerabilities or the likely use of service information for tactical or operational activities harming the security interests of the Union, its Member States or international partners.


According to Article 15 (Request for reassessment of sensitivity) the Commission may reassess the sensitivity of data or service information on its own initiative or at the request of a Member State with a view to restricting, suspending or allowing the acquisition of data or the dissemination of service information. The Annex has not been amended since the original entry into force of the Delegated Regulation.

According to Article 16 (Balance of interests), the Commission shall balance the security interests against the interests of users and the environmental, societal and economic benefits of open dissemination of the data and information in question. The Commission shall further consider whether restrictions will be effective if similar data are available from other sources.

The Delegated Regulation furthermore allows for access restrictions to certain user groups. However, this possibility is only foreseen in case the overall usage exceeds the capacity of the dissemination platforms used for dissemination. In such case, access may be reserved to public services, industry, research organisations and citizens in the Union or in contributing countries or contributing international organisations. Access restriction is managed with user registration.

All the above currently foreseen modes of limitation are not specifically designed for implementing an effective differentiation between EU entities towards non-EU entities. Where legal or security restrictions apply, the relevant provisions apply to all users without differentiation concerning their origin. Such differentiation is possible under Art. 17, although it requires objective technical limitations in the capacity of the dissemination platforms employed for data and services provision and is thus to be considered as exceptional and temporary.

5.2. FEASIBILITY UNDER INTERNATIONAL LAW The European Commission could be prevented from adopting amendments to the Copernicus Data Policy and introducing restrictions in case such measures would be in conflict with international law and resulting obligations for the European Union. The analysis of international legal instruments hereinafter only relates to a selection of relevant international instruments and is not necessarily exhaustive. This section also does not provide a detailed legal analysis, whether the actual implementation of any the Options presented above would violate binding legal commitments of the European Union. For the purpose of the present study, only high-level indications are provided.

5.2.1. G8 OPEN DATA CHARTER In July 2013, G8 leaders signed the G8 Open Data Charter. The G8 members are Germany, France, the United Kingdom, Italy, Japan, the United States, Canada and Russia. The European Commission is also represented at all the meetings. The G8 governments agreed to follow a set of five core open data principles for access to, release of and re-use of government data. According to the first principle, data shall be open by default. The G8 governments established the expectation that all government data should be published openly by default and they agreed to support the release of data using open licences or other relevant instruments so that no restrictions or charges are placed on the re-use of the information for non-commercial or commercial purposes. However, the Charter also recognises that there can be legitimate reasons why some data cannot be released. In this respect, the Charter refers to national and international legislation, in particular pertaining to intellectual property, personally-identifiable and sensitive information, but also broadly to “exceptional circumstances” as well as to the “national political and legal frameworks.” The EU endorsed the G8 Open Data Charter and, with other G8 members, committed to implementing a number of open data activities in the G8 members’ Collective Action Plan. A summary on the


compliance of EU policies and legislation with the Charter principles of October 201831 underlines that the European Union has for years been stressing the goal of opening up data as a resource for innovative products and services and as a means of addressing societal challenges and fostering government transparency. Indeed, better use of data, including government data, can help to power the economy, serving as a basis for a wide range of information products and services and improving the efficiency of the public sector and of different segments of industry. The document states that the European Union aims to be at the forefront of public administrations in terms of openness in relation to its own documents. Since 2013, the EU has taken numerous further policy and legislative measures towards these aims.

5.2.2. INTERNATIONAL OPEN DATA CHARTER The G8 Open Data Charter was followed by activities to establish more inclusive and representative open data principles, including by the Open Government Partnership’s (OGP) Open Data Working Group. During 2015, open data experts from governments, multilateral organizations, civil society and the private sector, worked together to develop an international Open Data Charter, with six principles for the release of data:

1. Open by Default; 2. Timely and Comprehensive; 3. Accessible and Useable; 4. Comparable and Interoperable; 5. For Improved Governance and Citizen Engagement; and 6. For Inclusive Development and Innovation.

There is an annotated text of the Charter and an additional document including definitions of key terms. According to these documents, the principle of “open by default” means that government data should be made open and available for the public to find, access and use under an open and unrestrictive licence, unless there is a specific, pressing reason why that data cannot be made open, and that reason is clearly communicated to the public. Examples of laws and restrictions that may affect openness of government data include protection of privacy (e.g. personal information), confidentiality (e.g. client-solicitor privilege), intellectual property (e.g. patented technology) or national security (e.g. covert operations). In cases where data cannot be made open, it may instead be closed data (which can be accessed only by the data subject, owner, or holder) or shared data (which is accessible beyond its subject, owner, or holder, but is only accessible to a limited group of people or organizations). Governments seeking to adopt the Open Data Charter should release a high-level public statement (issued by the Head of State, Minister, Secretary, Deputy Secretary, or other appropriate official) that articulates the adoption of the Charter. While adoption of the Open Data Charter is on a non-binding, voluntary basis, it is important that adopting governments uphold the principles of the Charter, so as to maintain their credibility and promote greater impact. Governments will remain in the Charter network as long as they demonstrate continued commitment to implementing the Charter principles. Three Member States of the European Union – France, Italy and the United Kingdom – have so far adopted the Charter. The European Union itself has not adopted it.

5.2.3. GEO AND GEOSS Established in 2005, the Group on Earth Observation (GEO) is a voluntary partnership of governments and organizations that envisions “a future wherein decisions and actions for the benefit of humankind are informed by coordinated, comprehensive and sustained Earth observations and information” (GEO 2005). Together, the GEO community is creating a Global Earth Observation System of Systems (GEOSS) to better integrate observing systems and share data by connecting existing

31 EU implementation of the G8 Open Data Charter, October 2013.


infrastructures using common standards. There are more than 400 million open data resources in GEOSS from more than 150 national and regional providers such as NASA and ESA; international organizations such as WMO and the commercial sector such as Digital Globe. Ministers of the GEO member governments meet periodically to provide the political mandate and overall strategic direction for GEO. The Mexico City Ministerial Declaration from the GEO Ministerial Meeting in 2015 saw world leaders commit to support open Earth observation data for the next decade. Ever since its inception, GEO has been a strong advocate for broad and open data-sharing policies and practices. Particularly, the Data Sharing Principles (2005-2015) inspired a few Members and Participating Organizations to evolve from restricted data policies to Open Data approaches. Data sharing was also recognized as one of the greatest successes of the first GEO decade. Embracing the international trend of Open Data, GEO Principals endorsed a new set of Data Sharing Principles, which promote ‘Open Data by Default’, in Mexico City at the dawn of the second decade of GEO (2016-2025).

1) data, metadata and products will be shared as Open Data by default, by making them available as part of the GEOSS Data Collection of Open Resources for Everyone (Data-CORE) without charge or restrictions on reuse, subject to the conditions of registration and attribution when the data are reused;

2) where international instruments, national policies or legislation preclude the sharing of data as Open Data, data should be made available with minimal restrictions on use and at no more than the cost of reproduction and distribution; and

3) all shared data, products and metadata will be made available with minimum time delay.

All members of GEO—whether existing ones or new—are required to endorse the Plan and therefore these Principles. At the same time, it is important to underline the fact that GEOSS is composed of voluntarily contributed systems and data, which are governed by pre-existing laws, policies and practices that may not always be fully compatible with the Principles. The association of GEO Members and Participating Organisations and thus their adherence to the Data Sharing Principles are not legally binding. The Principles will gain acceptance and importance through good-faith voluntary adherence, which may also be accompanied by legal and policy changes at the national or international levels. GEO welcomes all data contributions into the GEOSS. When registering data in GEOSS, the contributor should present any restrictions arising from relevant international instruments and national policies and legislation, and the duration of each restriction, that is applicable to the exchange of the data, metadata and products submitted. Copernicus is a key contributor to GEOSS.

5.2.4. WORLD TRADE ORGANISATION Restrictions on access to and use of Copernicus data for non-EU entities could violate the international agreements concluded by the European Union in the frame of the World Trade Organisation (WTO). As far as the General Agreement on Trade in Services (GATS) is concerned, such restrictions for non-EU entities may affect a number of services covered by the GATS, namely those falling within the “Other Related Scientific and Technical Consulting Services” sector (SSCL Sector 1.F.m). The EU has adopted national treatment commitments in that sector as per Article XVII GATS. Measures which provide for different access conditions between EU and non-EU companies may be inconsistent with these national treatment commitments. Moreover, such measures may be regarded as incompatible with Article VI GATS insofar as they appear as “more burdensome than necessary to ensure the quality of the service” and as they directly lead to restrictions in the supply of services based on the Copernicus data. As far as a future Copernicus data policy would provide for differential treatment between EU and non-EU users on the basis of the principle of reciprocity, it may be regarded as incompatible with the EU’s


obligations under the Most Favoured Nation (MFN) clause. Reciprocity or data buy agreements with non-EU states may have different terms and conditions, depending on whether such state may dispose of and provide access to data of its own systems of comparable interest and quality. This could lead to differential treatment of the WTO members with which the EU concludes such agreements. Although such measure in the Copernicus data policy might be partially covered by GATS exemptions, notably by the exemption for services provided in the exercise of governmental authority, it may be that those exemptions are unable to secure full compliance with EU’s current obligations under the GATS. The applicability of GATS provisions to the Copernicus Data Policy does not per se rule out the applicability of General Agreement on Tariffs and Trade (GATT) provisions. A differentiation between EU and non-EU users could have indirect effects on trade in goods falling within the scope of the GATT. Namely, electronic data, including Earth observation and geospatial data, may be regarded as a good if stored on physical media. Trade in such physical storage devices however is today rarely employed due to the use of internet and cloud computing services. A differentiation between EU and non-EU users would not concern or affect taxes and customs duties, hence they fall outside the scope of the MFN and national treatment obligations under the GATT. In addition, although they might be regarded as de facto restrictions under Article XI GATT, they are extremely unlikely to meet the causation requirement established in the Argentina – Hides and Leather case. Consequently, the GATT would likely not stand against the implementation of restrictions for non-EU users. The same results for the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreements’ restrictions in the provision of Copernicus data and information do not interfere with the protection of intellectual property rights over that data. The Agreement on Government Procurement (GPA) may apply to procurements by EU bodies or Member States for the implementation of the Copernicus programme, including for infrastructure, equipment or services. However, the GPA does not apply to the Copernicus data policy, insofar as the policy only concern the provision – rather than the procurement – of Copernicus data and related services. The Information Technology Agreement (ITA) only covers trade in IT products in the form of goods. Copernicus data and services, accordingly, lie outside the scope of the ITA. The ITA could become relevant if the EU would restrict the trade in goods falling within the scope of the ITA and related to Copernicus infrastructure or otherwise related to Earth observation and geo-information systems (e.g. computers, antenna, data processing facilities, data storage products). Even then, the ITA would however only apply to “customs duties and other duties and charges of any kind”. In result, implementation of access and use differentiations for EU and non-EU users could theoretically violate the EU commitments under the GATS. One has however to note that governmental data policies, namely for Earth observation data, have so far not been gained much attention within the WTO framework and there have been no dispute procedures on restrictions in such data policies. While data policies may have negative impacts on services based on such data, access limitation arising from data policies have as far as identifiable never been evaluated under WTO instruments. Thus, even if, in theory, the implementation of access and use differentiations may violate EU commitments, this does not necessarily mean that a non-EU state would take recourse to the WTO instruments should the EU introduce restrictions in the Copernicus data policy regarding non-EU users. In addition, political circumstances at the time when restrictions are introduced may also come into play. We recommend that the European Commission conducts a more detailed analysis should it decide to introduce a comprehensive access restriction for non-EU users, especially if including bilateral reciprocity agreements.

5.2.5. AARHUS CONVENTION The United Nations Economic Commission for Europe (UNECE) C convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus at the Fourth Ministerial Conference as part of the "Environment for Europe" process. It entered into force on 30 October 2001. The Decision on conclusion of the Aarhus Convention by the EC was adopted on 17 February 2005 [Decision 2005/370/EC]. The EC is a Party to the Convention since May 2005.


Under the Convention, public authorities (i.e. state, regional or other government entities) in Europe shall, in response to a request for environmental information, provide the information to the public within the framework of national legislation. Environmental information means any form of information in written, visual, aural, electronic or any other form on the state of the environment and factors affecting the environment. Public authorities should make environmental information available to any applicant without the applicant having to state an interest. The Convention requires that data requests are fulfilled as soon as possible and at least within a month. Public authorities may charge for the information, but this charge should not exceed a reasonable amount, although “reasonable” is not defined. The Convention does contain exception conditions concerning access to environmental information. A request for environmental information may be refused, if the disclosure would adversely affect:

(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

(b) International relations, national defence or public security; (c) The course of justice, the ability of a person to receive a fair trial or the ability of a public

authority to conduct an enquiry of a criminal or disciplinary nature; (d) The confidentiality of commercial and industrial information, where such confidentiality is

protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;

(e) Intellectual property rights; (f) The confidentiality of personal data and/or files relating to a natural person where that person

has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;

(g) The interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or

(h) The environment to which the information relates, such as the breeding sites of rare species.

The aforementioned grounds for refusal shall however be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment. Each Party may allow its public authorities to make a charge for supplying information, but such charge shall not exceed a reasonable amount. Public authorities intending to make such a charge for supplying information shall make available to applicants a schedule of charges which may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge. UNECE has 56-member States, including the United States, Canada and many other non-EU states. The Convention is a binding legal instrument under international law.

5.2.6. BILATERAL AGREEMENTS The EU cooperates with third countries in the frame of the Copernicus programme through administrative Cooperation Arrangements. The European Commission concludes such Cooperation Arrangements where they can provide added-value to the EU and the partner country in a reciprocal manner (e.g. provision of satellite data for calibration/validation support, provision of in-situ data). To date, such arrangements have been concluded with the United States, Australia, Brazil, Colombia, Chile, India, Ukraine, Serbia and the African union. Other countries have shown interest in data exchange with the Copernicus programme, so that additional arrangements may be concluded in the future. The arrangements are not in the public domain. However, from official sources it can be deducted that these arrangements typically grant free, full and open access to data from the EU's Copernicus Earth observation programme, as well as information and forecasts from Copernicus services while the EU


gains reciprocal access to observations and archives from non-commercial Earth observation satellites of the respective partner country. In addition, the arrangements benefit Copernicus data gathering through the availability of in-situ data for the calibration and validation of EU satellite data. The arrangements are based on the principle of 'no exchange of funds', meaning that each side will finance their own activities. The arrangements typically underline that both parties are committed to the principle of full, free and open access to their respective Earth observation satellite data and information, however subject to applicable security restrictions. In addition, each partner commits to ensure the protection of individual personal data according to the privacy protections and data protection provisions under their respective laws. The Agreements typically contain provisions clarifying that they are not intended to create any rights or obligations for either side, nor to create any legal rights or financial obligations under international or national law.

5.2.7. WORLD METEOROLOGICAL ORGANISATION (WMO) The main theme of the World Meteorological Organisation (WMO) data policy as presented in its Resolution 40 of 1995 is a commitment to the free and unrestricted international exchange of basic meteorological data and products, including satellite Earth observation data where appropriate. In this context “free and unrestricted” means non-discriminatory and without charge, and without charge means no charge for the data themselves, but the cost of reproduction and delivery can be charged. This is in line with a general policy of full, free of charge and open data. However, because of commercial meteorological activities, the actual data policy is more restrictive and adopts a policy of free of charge and unrestricted data for “essential” data and products that are necessary for the provision of services in support of the protection of life and property and the well-being of all nations: these “essential” data and products are defined in an annex to Resolution 40.

The distinction of “essential” and “additional” data in WMO Resolution 40 is not absolutely clear and so it has meant that different data access and distribution policies could coexist among WMO Members while still respecting the use of the terms “essential” and “additional”. Those WMO Members with a data policy favouring open and free access declared all their data “essential”, while for others with more restricted data policies, Resolution 40 enabled commercial distribution of some data while declaring other data as “essential”.

WMO Resolution 60 (Cg-17) of 2015 is the WMO policy for the international exchange of climate data and products to support the implementation of the Global Framework for Climate Services (GFCS). Resolution 60 affirms the commitment of WMO Members to the free and unrestricted exchange of meteorological, hydrological, climatological and related environmental data and products, which have been developed or acquired under the auspices of WMO and which are required to support the implementation of GFCS. The Resolution recognizes the rights of governments to choose the manner by, and the extent to which, they make their GFCS-relevant data and products available domestically and for international exchange, taking into consideration relevant international instruments and national policies and legislation.

The WMO recognises that there is growing use by WMO Members of commercial and non-Member meteorological data. WMO Resolution 60 has been developed to allow a wider use of data from non-traditional sources, particularly with new satellite and in-situ data collection capabilities, while at the same time acknowledging the need for open data that is based on transparent and robust data quality information. This diversity of data sources and diversity of uses and users is driving a continued re-evaluation of the WMO data policy.

5.2.8. INTERNATIONAL SCIENCE COUNCIL The global voice of science, the International Science Council (ISC), has been actively involved in the management of data and information for science since the 1950s when the World Data Centres were established as part of the International Geophysical Year of 1957-58. In its vision statement the forerunner of the ISC, the International Council for Science (ICSU), explicitly recognised the value of data and information to science:


[the vision of ICSU is] … a world where science is used for the benefit of all, excellence in science is valued and scientific knowledge is effectively linked to policy making. In such a world, universal and equitable access to high quality scientific data and information is a reality …

ICSU recommended in 2008 the creation of a new World Data System (WDS) based on the former World Data Centres (WDCs) and the Federation of Astronomical and Geophysical data analysis Services (FAGS). The World Data System is based in Tokyo and its purpose is to provide a coordinated, professional approach to the management of scientific data and the production of services based on the data. The WDS has developed a set of principles on access to data for science purposes and all member organisations of the WDS that provide data to the WDS, including providers of Earth observation data and derived products, have to adhere to these principles. The principles are listed below and follow closely those of GEO and GEOSS noted above.

n Data, metadata, products, and information should be fully and openly shared, subject to national or international jurisdictional laws and policies, including respecting appropriate extant restrictions, and in accordance with international standards of ethical research conduct.

n Data, metadata, products, and information produced for research, education, and public-domain use will be made available with minimum time delay and free of charge, or for no more than the cost of dissemination, which may be waived for lower-income user communities to support equity in access.

n All who produce, share, and use data and metadata are stewards of those data, and have responsibility for ensuring that the authenticity, quality, and integrity of the data are preserved, and respect for the data source is maintained by ensuring privacy where appropriate, and encouraging appropriate citation of the dataset and original work and acknowledgement of the data repository.

n Data should be labelled ‘sensitive’ or ‘restricted’ only with appropriate justification and following clearly defined protocols and should in any event be made available for use on the least restrictive basis possible.

5.2.9. SUMMARY For the purpose of the present study, it can be concluded that most international instruments dealing with data policies and data access are non-binding under international law. This even includes the bilateral agreements concluded by the European Union in the specific context of Copernicus. However, there are also exceptions, namely the WTO GATS and the Aarhus Convention, to both of which the European Union is a party. In addition, it must be considered that formally non-binding instruments reflect principles and foresee actions on which these States agree at the time of their adoption. Though legally non-binding, they nevertheless imply political will and commitment. The European Union has for years been stressing the goal of opening up public data as a resource for innovative products and services and as a means of addressing societal challenges and fostering government transparency, considering that better use of data can help to power the economy, serving as a basis for a wide range of information products and services and improving the efficiency of the public sector and of different segments of industry. The European Union has been at the forefront of public administrations in terms of openness and has undertaken numerous initiatives in support of open data policies.

5.3. FEASIBILITY UNDER EU LAW Under EU law, the Space Programme Regulation, once adopted, will become the most relevant instrument for an assessment of the legal feasibility of a potential extension of limitations to the Copernicus data policy. Accordingly, the first part of this section analyses the legal feasibility of a potential extension of limitations to the Copernicus data policy under the draft Space Programme Regulation. Assuming that the draft Space Programme Regulation would allow for restrictions to the current data policy, the following parts address whether and to what extent, restrictions to the current data policy are legally feasible under applicable EU law. The analyses reflect a selected, not exhaustive set of relevant EU legal instruments. It only presents a high-level overview and does not contain detailed legal analysis.


5.3.1. FEASIBILITY UNDER DRAFT SPACE PROGRAMME REGULATION On 6 June 2018, the European Commission has published its Proposal for a Regulation establishing the space programme of the Union and the European Union Agency for the Space Programme. The proposal is now entering the trialogue negotiations between Council, Parliament and the Commission.

Article 52 of the draft Regulation as proposed by the Commission contains the new provision on the Copernicus data and information policy. The draft provision reiterates the free, full and open data policy and states that users may, on a free and worldwide basis, reproduce, distribute, communicate to the public, adapt, modify all Copernicus data and Copernicus information and combine them with other data and information.

The draft provision then stipulates the following limitations:

n the formats, timeliness and dissemination characteristics of Copernicus data and Copernicus information shall be pre-defined;

n the licensing conditions of third-party data and third-party information used in the production of Copernicus Services information shall be abided by where applicable;


n protection against the risk of disruption of the system producing or making available Copernicus data and Copernicus information shall be ensured;


The delegated acts which the Commission shall adopt in accordance with Article 105 of the draft Regulation for establishing specific conditions and procedures for the access to and use of Copernicus data and Copernicus information has to remain in the boundaries set by the Regulation.

The same applies to licenses and notices for access and use of Copernicus data and Copernicus information which the Commission shall issue. Draft Art. 52 Section 3 clearly states that such licenses and notices have to be in compliance with the Copernicus data policy as set out in the Regulation.

a) Restrictions due to Geography/ origin of recipients (e.g. EU Member States, countries with a Copernicus agreement, Rest of the World)

While Section 1 a) of the draft Regulation states that usage is allowed “on a free and worldwide basis”, Section 2 b) could in principle allow restrictions with regard to the origins of the users. Such restrictions could be based on two of the limitations stipulated, namely:



The European Commission would be allowed to further define these limitations in the Delegated Regulation.

Regarding limitations due to security reasons, Art. 52 refers to Art. 34 (1) of the draft Regulation. It requests the Commission, in its field of competence, to ensure a high degree of security with regard to, in particular:

(a) the protection of infrastructure, both ground and space, and of the provision of services, particularly against physical or cyber-attacks;

(b) the control and management of technology transfers;

(c) the development and preservation within the Union of the competence and know-how acquired;

(d) the protection of sensitive non-classified and classified information.

To that end, the Commission shall ensure that a risk and threat analysis is performed for each Programme's component. Based on that risk and threat analysis, it shall determine, by means of implementing acts, for each component of the Programme, the general security requirements.


Restrictions due to security concerns are already possible under the current Copernicus Regulation and the current Delegated Regulation. According to Article 12 (Protection of security interests) of the current Delegated Regulation, the Commission shall restrict dissemination, where dissemination would present an unacceptable degree of risk to the security interests of the Union or its Member States. The Commission shall assess the sensitivity of data and service information based on the sensitivity criteria described in the Delegated Regulation, whereby Art. 13 relates to data and Art. 14 to services information. According to Article 16 (Balance of interests), the Commission shall however balance the security interests against the interests of users and the environmental, societal and economic benefits of open dissemination of the data and information in question. The Commission shall further consider whether restrictions will be effective if similar data are available from other sources.

In conclusion, the draft Regulation would allow limitations regarding access to and use of Copernicus data and information, in case such limitations are justified for security reasons based on a related analysis by the Commission. However, the security limitation is not specific for non-EU users. If and when data are considered sensitive, dissemination can be restricted to accredited users. A broader access differentiation for EU and non-EU users is not foreseen.

Limitations for non-EU users would also be possible if this would be required to ensure and protect reliable access to Copernicus data and Copernicus information for European users. Similar limitations are already foreseen under the current legal framework and the relevant details are included in the current Delegated Regulation. Article 17 of the current Delegated Regulation allows to introduce access reservations, where the requests for access exceed the capacity of the available dissemination platforms. In such a case, access can be reserved to public services, industry, research organisations and citizens in the Union or in contributing third countries contributing or to contributing international organisations. Access reservation is managed through a registration system. In theory, it would be conceivable to take up the same provision in the next Delegated Regulation. However, in view of the broad availability of EU-sponsored (DIAS), ESA (Copernicus Open Data Hub), national (Collaborative Ground Segment) and commercial platforms, it is difficult to imagine a situation where technical limitations which could make it impossible for them to honour all the requests for data or information.

In conclusion, the second option would only be feasible for security reasons or technical limitations. In practice, only the limitations for security reasons should be applicable. However, the security restriction foresees a restricted dissemination to accredited users, but does not foresee a broader differentiation regarding EU and non-EU users. Such differentiation is conceivable, as shows the example of the German Satellite Data Security Act (SatDISG) which foresees country black lists regarding receiving ground stations or target areas. However, a similar approach in Copernicus would require changes in the provisions of the draft Space Programme Regulation and the subsequent Delegated Regulation.

Access and use against a fee

The Commission cannot introduce a charging system within the Delegated Regulation, as Art. 52 (1) clearly states the principles of free, full and open and under (a) states that use is on a free basis. None of the limitations stipulated under (b) allows for the introduction of a charging system.

Restrictions of redistribution

Restriction to redistribution of data would not be feasible under the current draft Regulation. Article 52 (1) describes the types of use allowed under the full, free and open data policy. Among others, it includes that users may, on a free and worldwide basis, distribute all Copernicus data and Copernicus information. The limitations in Art. 52 (1) b) allow to define the dissemination characteristics of Copernicus data and Copernicus information and they also allow to establish detailed licensing conditions. However, in view of the clear text of Art. 52 (1), a restriction of the dissemination right to entities which have concluded specific agreements with the European Commission should not be feasible.

However, the above analysis is only valid on the assumption that the Commission Proposal with regard to the provisions on the Copernicus data and information policy will be adopted by the Council and the Parliament without changes. In this respect, the Council position, as adopted on 19 December 2018,only contains minor changes to Art. 52 which would not affect its substance.

In earlier working version, , has introduced a major change to Art. 52 (1) b) according to which the full, free and open data policy would only apply to it shall apply only to EU users, while a dedicated data policy shall be applied to other (non-EU) users. The version provided the following justification:


“Data policy should be applied differently with users coming from the Union and outside of the Union. The benefits of the European citizens and the investments of the Member States should be preserved.”

However, the latest Parliament version, as adopted on 13 December 2018, does no longer contain this amendment.

As of the time the present study is written, it is not foreseeable which final agreement the Council, the Parliament and Commission will find during negotiations, namely on the exact wording of Art. 52 of the draft Regulation.

5.3.2. EU LEGAL FRAMEWORK ON ACCESS TO EU INFORMATION According to Article 42 (Right of access to document) of EU Charter of Fundamental Rights, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents. Similarly, Art. 15 (3) TFEU stipulates that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure. This has been implemented by Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents. The Regulation defines the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission. While the Regulation primarily addresses citizens and natural or legal persons in the EU, the institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State. The term “document” is defined widely, encompassing any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audio-visual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility. Accordingly, Copernicus data and information may, in principle, fall under the scope of the above-mentioned legal framework. Practical difficulties may, however, arise to the extent that this legal framework was drafted to grant access to specific documents or specific files of documents rather than to petabyte of data which are constantly generated. Art. 4 stipulates the exceptions, under which the institutions can refuse access to a document. The first category encompasses grounds where disclosure would undermine the protection of the public interest and includes public security, defence and military matters, international relations, or the financial, monetary or economic policy of the Community or a Member State. Art. 4.1 b) refers to privacy and the integrity of the individual, in particular in accordance with applicable EU legislation regarding the protection of personal data. Art. 4 (2) the institutions may refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure. According to Article 10, applicants shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant's preference. The cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending the copies. As a side note, as not directly applicable to Copernicus data, Directive 2003/98/EC of the European Parliament and the Council on the re-use of public sector information (‘PSI Directive’) was originally adopted on 17 November 2003. The Directive aimed to facilitate the re-use of PSI throughout the Union by harmonising the basic conditions for re-use and removing major barriers to re-use in the internal market. It introduced provisions on non-discrimination, charging, exclusive arrangements, transparency, licensing and practical tools to facilitate the discovery and re-use of public sector information. In July 2013 Directive 2003/98/EC was amended by Directive 2013/37/EU, with the aim to encourage Member States to make as much material held by public sector bodies available for re-use as possible. The modifications introduced an obligation to allow the re-use of generally accessible public data,


expanded the scope of the Directive to include documents from public libraries, museums and archives, established a default charging rule limited to the marginal cost for reproduction, provision and dissemination of the information, and obliged public sector bodies to be more transparent about the charging rules and conditions they apply. The amending Directive was implemented into national legislation by all 28 EU Member States. On 25 April 2018, the European Commission adopted a proposal for a revision of the PSI Directive (COM(2018) 234 final), which was presented as part of a package of measures aiming to facilitate the creation of a common data space in the EU. In the preparatory assessments and consultations, it was apparent that several public sector bodies continue to charge well above what is needed to cover reproduction and dissemination costs for the re-use of public sector data. The Commission Proposal therefore aims to further limit the exceptions that allow public bodies to charge for the re-use of their data more than the marginal costs of dissemination. In addition, the Proposal foresees increasing the availability of data by bringing new types of public and publicly funded data into the scope of the Directive, such as data held by public undertakings in the utilities and transport sectors and research data resulting from public funding. As a further note, on 17 July 2012, the Commission adopted a Recommendation on access to and preservation of scientific information, updated recently on 25 April 2018, and describing, among other things, relevant elements of open access policies. Additionally, the conditions, under which certain research results can be re-used, should be improved. For this reason, certain obligations stemming from the PSI Directive should be extended to research data resulting from scientific research activities subsidised by public funding or co-funded by public and private-sector entities. However, in this context, concerns in relation to privacy, protection of personal data, trade secrets, national security, legitimate commercial interests and to intellectual property rights of third parties should be duly taken into account. In order to avoid any administrative burden, such obligations should only apply to such research data that have already been made publicly available by researchers. Other types of documents held by research performing organisations and research funding organisations should continue to be exempt from the scope of application of the PSI Directive.

5.3.3. EU LEGAL FRAMEWORK ON REUSE OF COMMISSION DOCUMENTS The Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU) determines the conditions for the reuse of documents held by the Commission or on its behalf by the Publications Office of the European Union (the Publications Office) with the aim of facilitating a wider reuse of information, enhancing the image of openness of the Commission, and avoiding unnecessary administrative burdens for re-users and the Commission services alike. As in Regulation (EC) No 1049/2001, document means any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audio-visual recording). Article 4 stipulates the general principles that all documents shall be available for reuse a) for commercial or non-commercial purposes under the conditions laid down in Article 6;(b) without charge, subject to the provisions laid down in Article 9; and (c) without the need to make an individual application, unless otherwise provided. According to Art. 6, documents shall be made available for reuse without application unless otherwise specified and without restrictions or, where appropriate, an open licence or disclaimer setting out conditions explaining the rights of re-users. Conditions, which shall not unnecessarily restrict possibilities for reuse, may include (a) the obligation for the re-user to acknowledge the source of the documents; (b) the obligation not to distort the original meaning or message of the documents; (c) the non-liability of the Commission for any consequence stemming from the reuse. According to Art. 9 the reuse of documents shall in principle be free of charge. In exceptional cases, marginal costs incurred for the reproduction and dissemination of documents may be recovered. Where the Commission needs to adapt a document in order to satisfy a specific application, the costs involved in the adaptation may be recovered from the applicant.

5.3.4. INSPIRE DIRECTIVE The European Union Directive (EC) No.2007/2 of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE Directive) applies to spatial data


held by or on behalf of European public authorities and to the use of spatial data by public authorities in the performance of their public tasks. Member States shall establish and operate a network of the services in relation to spatial data sets. Those services shall be available to the public and accessible via the internet or any other appropriate means of telecommunication. Article 13 states that Member States may limit public access to spatial data sets and services, where such access would adversely affect international relations, public security or national defence. Member States may further limit public access to spatial data sets and services through the services, where such access would adversely affect:

(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;

(b) international relations, public security or national defence; (c) the course of justice, the ability of any person to receive a fair trial or the ability of a public

authority to conduct an enquiry of a criminal or disciplinary nature; (d) the confidentiality of commercial or industrial information, where such confidentiality is

provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;

(e) intellectual property rights; (f) the confidentiality of personal data and/or files relating to a natural person where that person

has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law;

(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;

(i) the protection of the environment to which such information relates, such as the location of rare species.

The grounds for limiting access shall however be interpreted in a restrictive way, taking into account for the particular case the public interest served by providing this access. In every particular case, the public interest served by disclosure shall be weighed against the interest served by limiting or conditioning the access. According to Article 14, Member States shall ensure that the services are available to the public free of charge. Member States may allow a public authority supplying a service to apply charges where such charges secure the maintenance of spatial data sets and corresponding data services, especially in cases involving very large volumes of frequently updated data.

5.3.5. EU LEGAL FRAMEWORK FOR PERSONAL DATA PROTECTION As shown above, most international instruments as well as the EU legal framework allow restrictions in access to data on the grounds of personal data protection. Since 25 May 2018, the EU General Data Protection Regulation has become applicable. However, processing of personal data by EU institutions is governed by Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000. The Regulation shall be soon replaced by a new Regulation, in order to align it to the GDPR. Over the past years, there has been a growing sensitivity in the general public regarding geospatial data. Overestimating the capacities of EO systems, the media talk about “spies in the sky” or even of “paparazzi satellites.” People are concerned about images on Google Earth or Google Street View showing their private houses, gardens, or car parking. Guidelines for the interpretation and application of the European legal framework are from time to time issued by the European Data Protection Board (formerly the so-called Art. 29 Working Party) composed of representatives from the Commission, other EU bodies and the data protection authorities of all Member States. The Art. 29 Working Party has already issued opinions on cloud computing, drones, on geolocation services on smartphones, on the reuse of public sector information, and big data. So far, no specific opinion or statement has been given regarding Earth observation satellite data or geospatial data more generally.


Some indications on the application of the EU data protection framework in relation to EO data may, however, be derived from works by national authorities. A German data protection authority (ULD, the data protection authority of Schleswig-Holstein) presented in a 2008 study the view that optical EO data of a spatial resolution of above 40 cm pixel size are not suitable to violate personal data protection interests of a data subject. More recently, the ULD tends to apply an even more relaxed approach proposing a threshold of 20 cm pixel size resolution. The German Council for Social and Economic Data has also adopted the 20-cm threshold. The above does not mean that EO data of a spatial resolution of less than 40/20 cm automatically are of concern for personal data protection. It rather provides that for resolution above 40/20 cm an individual does generally not have a legitimate interest of data protection. Based on the above, Copernicus EO data per se are not very sensitive regarding personal data. The most advanced commercial imaging sensors provide a spatial resolution of around 30 cm (WorldView-3 image data from DigitalGlobe). With such resolution, it is not possible to directly identify an individual person from space. Due to the high speed of low-orbiting satellites, a specific scene can only be captured for a short time – it takes then at least one orbit until revisit. Therefore, it is not (yet) possible to “track” movements of individuals in real-time. However, optical data, at least with very-high resolution, may have the same quality as aerial photography and therefore may raise respective privacy issues. In addition, EO data may be combined with other data sets and the final products or services may raise privacy concerns, even if the raw or pre-processed input data itself do not. Even if EO data can be considered personal data, the lawfulness of its processing in general depends on the purpose of such processing. For example, while the processing of personal data for the purpose of contract management can be considered lawful, the processing of the very same data for the purposes of personalised advertising may be unlawful (without the data subject’s prior consent). Accordingly, the lawfulness of the processing of personal data in the context of EO services has to be reviewed on a case-by-case basis. For Copernicus data, considering their relatively low resolution so far, no privacy issues were raised, and the Commission has not applied any access restrictions in view of personal data protection.

5.3.6. EU LEGAL FRAMEWORK ON CLASSIFIED INFORMATION Access to the Copernicus data policy, data and information services can be restricted in case they would be classified. The relevant legal basis is Council Decision of 23 September 2013 on the security rules for protecting EU classified information (2013/488/EU). According to Article 2 (Definition of EUCI, security classifications and markings) ‘EU classified information’ (EUCI) means any information or material designated by an EU security classification, the unauthorised disclosure of which could cause varying degrees of prejudice to the interests of the European Union or of one or more of the Member States. According to Article 13 (Exchange of classified information with third States and international organisations) an appropriate framework shall be put in place in case the Council determines that there is a need to exchange EUCI with a third State or international organization. In order to establish such a framework and define reciprocal rules on the protection of classified information exchanged:

(a) the Union shall conclude agreements with third States or international organisations on security procedures for exchanging and protecting classified information (‘security of information agreements’); or

(b) the Secretary-General may enter into administrative arrangements on behalf of the GSC in accordance with paragraph 17 of Annex VI where the classification level of EUCI to be released is as a general rule no higher than RESTREINT UE/EU RESTRICTED.

Security of information agreements or administrative arrangements referred to in paragraph 2 shall contain provisions to ensure that when third States or international organisations receive EUCI, such information is given protection appropriate to its classification level and according to minimum standards which are no less stringent than those laid down in this Decision. The decision to release EUCI originating in the Council to a third State or international organisation shall be taken by the Council on a case-by-case basis, according to the nature and content of such information, the recipient’s need-to-know and the measure of advantage to the Union.


5.3.7. EU LEGAL FRAMEWORK ON THE PROTECTION OF DATABASES The level of protection granted under the Database Directive 96/9/EC may give a hint on the level of re-distribution permissible.

The Directive provides so-called “sui generis” protection to the maker of a database, comparable to copyright protection for intellectual creations. Database means:

a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means (Article 1 (1) Database Directive 96/9/EC).

Under Article 7 (1) of the Database Directive, the sui generis protection requires that the maker of a database shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.

Regarding the scope of protection, Article 8 (1) of the Database Directive stipulates that the maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever.

This means in turn that the maker of a database is, in principle, entitled to restrict the extraction or re-utilizatiion of substantial parts of its content. Article 7 (5) further provides that repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.

In line with this, one may consider drawing the line between (allowed) individual re-distribution and (restricted) full re-distribution of Copernicus and information. Re-distribution of insubstantial parts of Copernicus data and information, evaluated qualitatively and/or quantitatively, might be permissible, whilst re-distribution of substantial parts and/or repeated and systematic re-distribution of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database may not be permitted

5.3.8. SUMMARY Under the draft Space Programme Regulation as proposed by the Commission, limitations regarding access and use of Copernicus data and information by non-EU users would be allowed, in case such limitations are justified for security reasons or this would be required to ensure and protect reliable access to Copernicus data and Copernicus information for European users. In practice, only limitations for security reasons should become relevant in view of the numerous data dissemination platforms meanwhile available. The introduction of charges, as well as restrictions to redistribution would be not legally feasible under the draft Space Programme Regulation. The legislative process on the Space Programme Regulation is ongoing, entering now in the trialogue negotiations between Council, Parliament and the Commission.

Outside of the specific provisions of the future Space Programme Regulation, the relevant EU legal framework shows a strong aim towards open data. Nevertheless, the EU legal framework also contains possibilities for exceptions, conditions and limitations. These are broadly in line with the typical approaches of international open data instruments. Regulation (EC) No 1049/2001 allows refusal of access on the grounds of public security, defence and military matters, international relations, financial, monetary or economic policy of the EU or a Member State, privacy and the integrity of the individual, protection of commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, or for the purpose of inspections, investigations and audits. The INSPIRE Directive is even broader and allows limitations on the grounds of the confidentiality of the proceedings of public authorities, international relations, public security or national defence; the course of justice, the confidentiality of commercial or industrial information, intellectual property rights; the confidentiality of personal data, the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, or the protection of the environment to which


such information relates, such as the location of rare species. In fact, the applicable EU law does not only allow for limitations, but may require them.

However, the EU legal framework is rather strict regarding charges taken for access to and use of EU data. The overarching principle is that access shall be provided free of charge. Under Regulation (EC) No 1049/2001 the cost of producing and sending copies may be charged to the applicant. This charge shall however not exceed the real cost of producing and sending the copies. Under Commission Decision 2011/833/EU, the reuse of documents shall in principle be free of charge. In exceptional cases, marginal costs incurred for the reproduction and dissemination of documents may be recovered. Where the Commission needs to adapt a document in order to satisfy a specific application, the costs involved in the adaptation may be recovered from the applicant. Under the INSPIRE Directive, Member States shall ensure that the services are available to the public free of charge. Member States may allow a public authority supplying a service to apply charges where such charges secure the maintenance of spatial data sets and corresponding data services, especially in cases involving very large volumes of frequently updated data. The above described instruments may restrict the possibility to introduce charges for access to and use of Copernicus data and information, as far as such charges go beyond the costs for satisfying the user request (cost of copies and sending).

Regarding the right of re-distribution, introducing limitations may be against the Commission Decision on re-use, as it does not put any conditions on re-use. If limitations on re-distribution are established, the Database Directive may serve as a benchmark on the question which level of re-distribution is permissible.

None of the analysed EU legislation contains explicit restrictions for non-EU persons or entities. Article 42 of EU Charter of Fundamental Rights as well as Art. 15 (3) TFEU extend to any natural or legal person residing or having its registered office in a Member State, which may also include legal persons controlled by non-EU persons or entities.

5.4. LEGAL IMPLICATIONS OF CHANGING THE FFO DATA POLICY BY DEFINED OPTION

As shown before, the on-going legislative processes for the EU Space Programme Regulation establishing the budgetary, governance and programmatic framework for the next MFF period, provides the momentum for revision and potential re-definition of the data policy for Copernicus. The final version to be adopted by Council and Parliament then will set the scene and boundaries for more detailed definitions in the subsequent updated Copernicus Delegated Regulation to be proposed by the Commission. In case the Space Programme Regulation would maintain the approach of a full, free and open data policy, whereby Copernicus users may, on a free and worldwide basis, reproduce, distribute, communicate to the public, adapt and modify all Copernicus data and Copernicus information, this would strongly restrict any possibility of introducing any of the options presented in section 6.1 above in the Copernicus Delegated Regulation. While the Copernicus Delegated Regulation will have a certain flexibility in fine-tuning and detailing the general principles contained in the Space Programme Regulation, it cannot contradict or undermine its principles.

Otherwise, limitations to be introduced on the Copernicus data policy will need to be compliant with international law and other relevant and applicable EU law instruments. While there is a broad international framework proclaiming and supporting open data, most of the relevant legal or policy documents are non-binding for the members of the relevant organisations or bodies or otherwise their signatories. Besides few binding international instruments in specific areas, such as the Aarhus Convention, the relevant documents document or establish a political commitment towards open data more than a legal commitment. In addition, most relevant documents allow for numerous exceptions to open data principles, including namely the possibility of charges or access restrictions. That being said, it is obvious that a move by the EU from a full, free and open Copernicus data policy towards a policy based on charges, with strong access limitations for non-EU users or with strong limitations on re-distribution would constitute a clear policy shift contradicting numerous commitments, declarations and implementing measures taken over the past years both internationally and EU-internally. Such policy shift will not go without consequences. The EU would likely be faced with strong reactions from international partners and multilateral organisations or bodies and could lose its status as a forerunner in the global trend towards more open data. There will likely be a lot of criticism and the factual position of the EU in many organisations and fora could potentially shrink. In a worst-case scenario, the policy re-orientation by the EU could initiate a reverse trend on global level, with countries either not further


opening or sharing their public data or even taking similar restrictive measures on their own data. Some countries, and namely the US, could even take responsive measures such as access restrictions for EU users. Actions by other countries under the WTO legal framework seem theoretically possible, but should not be very likely considering both the legal grounds and political circumstances.

The analysis in chapter 4 above on the EU legal framework has revealed strong limitations on the introduction of the different options. With the PSI Directive, Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents and Commission Decision of 12 December 2011 on the reuse of Commission documents, the EU has set a comprehensive framework towards open public data both within Member States as within the EU institutions. This framework sets a clear limitation regarding charges. The general principle is that data shall be provided free of charge, and charges can only be taken in exceptional circumstances and limited to the marginal costs of (re-)producing and distributing the data to the recipient. The framework also establishes a rather broad understanding of use or re-use, which encompasses all types of commercial or non-commercial purposes and does not exclude re-distribution. Any re-definition of the Copernicus data policy will have to comply with this general EU legal framework and any introduction of charges or limitations on access and use will require a sound detailed analysis and due justification.

The following subchapters provide a more detailed assessment of the individual options based on the general findings above.

5.4.1. FIRST OPTION: ACCESS ALLOWED ONLY FOR EU USERS While access restrictions to non-EU users for security, defence or foreign policy reasons are generally possible, such limitations are generally not suitable to broadly exclude all non-EU users from access and use. Limitations will require an individual assessment and due justifications and their implementation will in most cases be temporary (in case of crisis or conflicts), restricted to certain data (VHR, specific geographic areas or objects) or applicable to selected individual countries (such as North Korea). Broad exclusions of non-EU users may also contradict commitments and declarations made by the EU on international data access and sharing such as e.g. the GEO Data Sharing Principles, as well as bilateral arrangements under which the relevant parties have committed to mutual open access to Earth observation satellite data and information. The short analysis on the WTO GATS further showed that - at least theoretically - such broad exclusions may eventually also be understood as a violation of EU commitments and core principles such as Most-Favoured Nation. In any case, beyond any legal implications, broad access restrictions for non-EU users will raise criticism, implications or even counterreactions on international level.

In addition, the introduction of access restrictions for non-EU users is also faced with implementation difficulties. Above all, a sound definition of non-EU users would be required. Such definition could be purely based on territory (person not residing or not having an office in a Member State). However, such definition could be rather easily circumvented, as non-EU entities would just have to establish an affiliate within one of the Member States. Alternatively, the definition could also be related to ownership and control of a legal entity. From a practical perspective, implementation of such approach would require a very detailed and reliable assessment of the ownership structures of the respective entity. In this respect , as mentioned above, Article 42 of EU Charter of Fundamental Rights as well as Art. 15 (3) TFEU establish that any natural or legal person residing or having its registered office in a Member State has a right of access to European Parliament, Council and Commission documents, which may also include legal persons owned or controlled by non-EU persons or entities. These fundamental provisions seem to exclude the possibility to prohibit access to Copernicus data for entities established in the EU under foreign ownership or control.

5.4.2. SECOND OPTION: ACCESS ALLOWED AGAINST A FEE FOR ALL USERS WITH THE EXCEPTION OF EU PULIC INSITUTIONS

Concerning the option of introducing charges to all Copernicus users (with the exception of EU public institutions), one has to consider that both the relevant international instruments as well as the relevant EU legislation are based on the principle that access to and use of public data shall by default be free of charge. Under international law, important instruments such as the G8 Open Data Charter, the GEO Data Sharing Principles, WMO Resolutions and many other documents advocate that public data in the relevant field of applicability should generally be made available free of charge. Similarly, under relevant EU law, the overarching principle is that access to EU data shall be provided


free of charge, as e.g. provided by Commission Decision 2011/833/EU on the reuse of Commission documents or by the INSPIRE Directive. All these instruments and legislations know exceptions, but they are mostly limited to charges based on the direct costs related to a user request. From a practical perspective, in times of cloud-based online data platforms, it is difficult to imagine a sound charging system calculated on the basis of costs for individual user requests. A charging approach going beyond the direct costs in relation to user requests would likely not be possible with a view to the applicable EU legal framework and it would also contradict the commitments and principles supported on international level.

5.4.3. THIRD OPTION: ACCESS ALLOWED FOR ALL USERS (EU AND NON-EU) BUT NO RIGHT TO REDISTRIBUTE THE DATA

In such scenario, only selected entities would have the right to (re-) distribute Copernicus data and information services (as is), based on contractual arrangements with the European Commission.

Similar to charges, the applicable EU legislative framework seems to restrict the possibility for such option considerably, as it broadly allows (re-) use of data held by EU institutions for all commercial and non-commercial purposes. Commission Decision 2011/833/EU on re-use of data held by EU institutions, in particular, demands that data shall be generally made available for reuse without restrictions. Restrictions on re-distribution, if any, could be, as with the Database Directive, limited to the re-distribution of substantial parts of Copernicus data and information.

In any case, in order to avoid significant negative impacts for EU industry, restrictions on the re-distribution of Copernicus data and information should always apply only to the data and information “as is”. Such restriction would allow the European EO downstream sector to continue using Copernicus data and information as inputs for value adding products and services. However, in practice, it would be difficult to determine which level of intervention on the original data set or information would be required for the non-applicability of the re-distribution prohibition. While minimal changes should not be sufficient, the threshold should also not unduly restrict commercial and non-commercial usage. Any ambiguities in this respect will leave industry and other users with uncertainties, potentially leading to negative impacts on usage and economic impacts. Due to technology and market advancements, such as big data analytics, any regulation would require also frequent review and, as necessary, updates.

Implementation of the option would then also require some sort of monitoring and enforcement mechanism, going beyond the mere user registration. As re-distribution can occur by many means, including by social media, email or postal services, we have doubts that any effective control and enforcement mechanism can be established, also considering the protection of fundamental rights and applicable laws. On the legislative side, either the Space Programme Regulation or the Copernicus Delegated Regulation would need to establish a set of fines or other punishments in case of violations, which to our knowledge has never been considered so far.


6. TECHNICAL/ OPERATIONAL ANALYSIS

6.1. GENERAL CONSIDERATIONS AND ASSUMPTIONS The platforms delivering Copernicus data and/or products to their users (e.g. the ESA Sentinel Data Open Access Hub delivering Sentinel data or the Copernicus core service websites delivering the products and information produced by the Copernicus core services) all embed a user management function and a data delivery function32.

The user management function relates to the management of user registration (including the management of the user data base) and to the management of the various interactions with users. The data33 delivery function provides users with the possibility to discover/view data and registered users with the possibility to have access to data (e.g. download) for further exploitation. These two functions have been designed in the context of a Full, Free and Open (FFO) data policy, which has led for instance to the implementation of very simple user registration mechanisms and in most cases to the absence of control of the users (anyone being entitled to have access to Copernicus data).

On a technical and operational standpoint, any access restrictions that would be applied to the delivery of Copernicus data and products would therefore have an impact on the user management function and in most cases on the data delivery functions.

Current data access landscape

The technical feasibility of any access restriction is directly depending on the technical and functional characteristics of the platform on which the access restriction should be implemented on the one hand, and on the type of restriction itself on the other hand (some restrictions being more complex to implement than others).

If all the Copernicus data and products were accessible through a single platform, the implementation of access restriction mechanisms would be facilitated, the design, implementation, testing and validation being made once for all on this platform.

In the present situation, the access to Copernicus data is provided through several distinct platforms (e.g. five DIAS are being implemented, Sentinel data are available through the Copernicus Access Hub operated by ESA and through the Copernicus Online Data Access system operated by Eumetsat, each Copernicus core service deliver its products through its own portal, a set of national mirror sites exist, Copernicus data are also accessible through several private initiatives), and access restriction mechanisms should therefore be implemented on each one of the existing individual EU platforms. To ensure the effectiveness of such restriction mechanisms, the same rules should be applied to third-party platforms. Indeed, implementing restrictions only on the EU platforms for instance and not on the national mirror sites would introduce a "breach" in the system which would make the access restriction ineffective.

Even in the case of access restrictions implemented on all existing platforms, a transition period during which access restrictions would be implemented on some platforms and not on the others would exist (the implementation being specific to each platform, it would be extremely difficult to ensure that access restrictions are implemented simultaneously on all the platforms).

Need for a common user registration system

In addition to the above-mentioned data access landscape, another obstacle to the implementation of access restrictions lies in the absence of a single registration system34. Today, each user interested in several types of data and products must register on each separate platform, each platform asking for a specific set of personal data during the registration process (some data -e.g. first name, last name, email address- are required by all platforms whereas other data -e.g. country of origin, domain of application- are required by some of the platforms and not by the others).

32 The functional breakdown of Copernicus is described in deliverable D3.2 "Copernicus System Functional View" produced under NEXTSPACE Specific Contract SC3 (dated Dec. 2017) 33 In this chapter, the term "data" is used as a generic term referring not only to satellite data but also to the products delivered by the Copernicus services. 34 Also, referred to as "Single Sign-on" (SSO) system


In case access restrictions would be implemented, it would be essential to ensure that they would not make the access to data more complex than today: any regression on user friendliness could deter potential new users from registering and therefore have a negative impact on user uptake.

For instance, asking users to provide evidence (e.g. proof that they originate from the EU, proof that they are a public entity, etc.) on each individual platform when registering would go against a user-friendly access. Considering this, it can reasonably be assumed that a prior condition to the implementation of access restriction mechanisms would be that a user registration system common to all the data access platforms is implemented, so that all the information and evidence required during the registration process is uploaded once for all into the system.

Thus, the high-level technical feasibility assessment of the various access restriction options addressed in this document assumes that in the medium-term a common user registration system would be put in place and all (EU) data access platforms would be connected to this common registration system.

Cost estimates and key overarching assumptions

Several aspects must be taken into account when estimating what the implementation costs of access restrictions could be.

The first one is the cost corresponding to the implementation of a user registration system common to all the Copernicus data access platforms and to the modification of each platform to be connected with this registration system.

The second one would be the cost corresponding to the technical implementation of the access restrictions on each one of the data access platforms (medium-term situation) or on the single data access platform (long-term situation). This cost would be highly depending on the type of access restriction to be implemented and on the functional and technical architecture of each platform on which this restriction would be implemented.

A third cost would correspond to the establishment and operation of a dedicated "administrative unit" inside the Commission, or elsewhere. Indeed, some access restrictions might be relatively easily by-passed by entities which would be ready not to respect the rules. The effectiveness of certain restrictions may therefore depend on the ability to perform checks, audits and controls.

In practice, the recurrent costs for the operation of an administrative unit able to perform check and controls would probably correspond to the most significant cost item on the long run. The estimates provided in this document therefore focus on this cost item.

This cost would depend on several parameters among which the number and type of checks and controls. Indeed, some checks and controls should be performed once (e.g. country of origin of a person). They would therefore need to be performed once for already registered users and then only for the new registrants. On the contrary, some checks and controls should be performed regularly (e.g. every year) for all registered users because they address criteria which are likely to change over time (e.g. the use of data made by a user may change from a year to another).

The cost would also depend on the complexity of the checks and controls to be performed: Some checks and controls could be relatively straight forward (e.g. verifying that a registered user is a EU public entity or not); while others could require more time and investigations (e.g. verifying that a private company presenting itself as a EU company is not in reality controlled or owned by a non-EU company).

Given uncertainty and data limitations, it was necessary to perform simulations based on the following "assumptions":

• According to the latest information presented by DG GROW at the European Space Week (3-6 December 2018), the number of registered users to Copernicus is over ~300 000. However, this total number is the cumulative sum of the users registered on the various Copernicus (EU) platforms and therefore it does not reflect the number of "unique users" (some users being registered on several platforms). In the absence of information on the actual number of unique users, a corrective factor should be applied on the total number of registered users. For the purpose of the assessment of costs, a factor of 80% has been considered, thus leading to an estimated number of ~240 000 unique users;


• In terms of evolution of the number of registered users, a growth of 15% per year seems to be reasonable considering the evolution reported for the Sentinel Open Hub in the "Copernicus KPI monitoring" report covering the period Q3 2018 and the large number of user uptake activities that will be carried out in the years to come. For the purpose of the cost impact assessment, a pessimistic scenario (growth of 10%) and an optimistic scenario (growth of 20%) have also been considered. This would therefore represent a number of 24 000 (pessimistic), 36 000 (nominal) and 48 000 (optimistic) new unique users in the first year, etc.;

• In terms of complexity, three different levels of complexity have been considered: simple (i.e. simple verification of the provided evidence -one simple document- completed if required with some additional searches on the internet), normal (i.e. verification of the provided evidence -a few documents- completed with additional searches on the internet and short discussions with the registrant if clarifications are needed) and complex (i.e. the verification of the evidence requires an analysis of several documents and possibly a dialogue with the registrants). The respective workloads allocated to each level of complexity are: 15 minutes per control (very simple), 1 hour per control (simple) and 4 hours per control (complex);

• In terms of personnel costs, it has been assumed that the controls would be performed by EU staff having a status of contract workers placed under the responsibility of an EU civil servant. It has been estimated that it would represent an average cost of 60 KEUR/FTE/year35;

• In terms of distribution of registrants, based on an extrapolation of the distribution of the audience attending the Copernicus Training and Information Sessions, it has been assumed that the public sector would represent 40% of registrants, the private sector would represent 25%, research entities would represent 25% and that the remaining 10% would correspond to international organisations, NGOs and citizens.

The table below provides with a summary of key assumptions.

Table 6-1: Summary of key overarching assumptions

Actual effectiveness of data access restrictions

As previously mentioned, some access restrictions might be by-passed by entities and the real effectiveness of certain restrictions might therefore depend on the ability to perform checks and controls.

35 This average cost has been calculated based on the information available on the following web pages: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:338:0001:0006:FR:PDF http://bruxelles.blogs.liberation.fr/2013/02/12/tout-ce-que-vous-avez-toujours-voulu-savoir-sur-le-salaire-des-eurocrates-sans-jamais-oser-le-demand/ https://europa.eu/youreurope/business/human-resources/employment-contracts/index_en.htm

Key Inputs Assumption Referene time Sourcea. Total number of actual registered Copernicus Users 300,000 2018 information presented by DG GROW at the European

Space Week (3-6 December 2018)b. % of unique users 80% First year Team assumption

c. Total number of unique users 240,000 First year Result= a.* b.

d. % of users affected by audits 60% First year

N. of non-EU users (40%) based on an extrapolation of the Copernicus Info-Sessions audience distribution and other available data on user statistics. Additional 20% of random check summed-up

e. Total number of users affected by audits 144,000 First year Result= c.*d.

e. % requiring complex controls 5% All period Team assumption

f. % requiring simple controls 20% All period Team assumption

g. % requiring very simple controls 75% All period Team assumption

h. N. of audit hours / complex control 4.00 All period Team assumption

i. N. of audit hours/ simple control 1.00 All period Team assumption

J. N. of audit hours/ very simple control 0.25 All period Team assumption

k. Estimated number of working hours per year 1,690

All period Based on Eurostat figures

l. Personnel cost per FTE/ year (euro) 60,000 All period Based on EC data

m. YoY Growth in the nominal scenario 15% Year 2 onwards Based on evolution reported for the Sentinel Open Hub


In some cases (e.g. access restriction based on the type of user or on the type of use), it might even be required that controls are performed “on the field”, which would be possible on the EU territory and not outside the European Union. In the end, such kinds of restrictions could reveal to be more penalising for EU players (which could be subject to controls) than for non-EU players (which might not be controlled).

Beyond the question of the technical feasibility of a given restriction, it would therefore be necessary to assess what would be its actual effectiveness before making the decision to implement it.

6.2. TECHNICAL/ OPERATIONAL FEASIBILITY

6.2.1. RESTRICTION BASED ON THE ORIGIN OF RECIPIENTS The restriction envisaged in this section would consist in granting access to data only to entities and persons originating from the EU Member States or Copernicus Participating Countries (or from countries having signed a cooperation arrangement with the EU) and in denying access to the rest of the world.

From a technical point of view, the implementation of access restrictions based on the originating country of the user would not face major issues. In practice, the limitation would consist in denying to people or entities originating from a "non-authorised" country the possibility to register whereas people or entities originating from an "authorised" country would have the possibility to register and then to access data on a free, full and open basis.

The only pre-requisite would be that the data gathered during the user registration process include a field dealing with the user’s country of origin, this origin being then used by the user registration function to determine whether the user is authorised to register or not. For registered users, the functioning of the data delivery chain would therefore remain unchanged (all registered users having a full, free and open access to data).

In case of access restrictions based on the country of origin, the main difficulty has more an operational nature and relates to the capacity to verify that the country of origin declared during the registration process is the right one.

At first glance, using IP tracking mechanisms could appear to be a simple way to automatically detect the country of origin but using the IP address is not a reliable way to determine the geographical location of the subscriber. Indeed, it could be easily circumvented through the use of a Virtual Private Network (VPN) for instance. Using the IP address as a denying criterion could even lead to deny access to EU citizens (or entities) based abroad. Considering this, the two main options that might be considered to ensure the veracity of the statement are the following: either to only ask for a declaration on honour (tick-a-box) or to validate registration upon the provision of an evidence of the origin of the registrant (e.g. ID for individuals or official administrative documents for companies and organisations).

In the first case (declaration on honour), the restriction could be very easily by-passed by malicious users who would just have to make a false declaration. Ex-post controls might be put in place to verify the good faith of the declarations on honour.

In the second case, the veracity of the declaration could not be automatically verified, and "manual" controls should be implemented by human operators before the user registration can be confirmed.

Apart from the fact that such access restrictions could be relatively easy to by-pass (e.g. through a dishonest declaration on honour as mentioned above or through the provision of false evidence), a clear definition of how to assess the "country of origin" of legal entities should be established.

Indeed, the logic of an access restriction based on the country of origin being to privilege EU entities vs. non-EU entities, the restriction should be designed in a way that would guarantee that EU-based subsidiaries of non-EU companies are not considered as EU-entities. If not, the restriction would not reach its objective. To take a concrete example, an access restriction based on the country of origin would have the expected effects only if EU-based subsidiaries of US companies were considered as US companies and not as EU companies.

In terms of costs, the costs induced by the technical implementation of an access restriction based on the country of origin would be limited to those mentioned in chapter 6.1 (i.e. costs corresponding to the implementation of a user registration system common to all the Copernicus data access platforms and to the modification of each platform to be connected with this registration system).


However, except in the case of a registration system based on a declaration on honour, additional recurrent costs would have to be foreseen for the establishment of an administrative and control unit able to verify the evidences provided by users during the registration phase or to perform ex-post audits/ controls.

For the purpose of the assessment, it has been considered that the controls would address only a part of potential users (i.e. registrants fulfilling the condition + registrants intentionally by-passing the restriction). Based on the available statistics on the current proportion of non-EU users among registered users (ca. 40%36) and on assumptions of the possible proportion of fraudsters (e.g. assumed additional 20% of users), it has been considered that registrants to be checked would represent 60% of the total number of unique users (i.e. 0.6 x 240 000 = 144 000). For the assessment of the corresponding costs, it has been considered that the type of control to be performed for determining the origin of the registrants would be "complex" for some private companies (5% of the registrants), "simple" for the other private companies (20% of the audience) and "very simple" for the other registrants. It has also been considered that the controls should be performed every year for private companies (the ownership being subject to change) whereas they should be performed only once for other types of registrants.

Based on these assumptions, the estimated costs would be as follows:

• First year: [(0.05 x 4 hours + 0.20 x 1 hour + 0.75 x 0.25 hour)/169037 hours/year x 144 000 registrants] persons x 60 KEUR/person/year = ~3 MEUR. Plus, a potential set-up cost to adapt the user registration system [0.5 MEUR one-off for IT consultancy support/ implementation]

• Second year (nominal scenario with a 15% growth rate of the number of users): [[0.15 x (0.05 x 4 hours + 0.20 x 1 hour) + 0.15 x 0.75 x 0.25 hour]/1690 hours/year x 144 000 registrants] persons x 60 KEUR/person/year = ~2.5 MEUR (this amount would then increase by 15% per year in the nominal scenario).

An option to minimise the above costs could be to perform controls (either control during the registration phase or ex-post controls) on a limited number of registrants (based on sampling). The cost for controlling x% of registrants would then correspond to x% of the above costs. The right balance would therefore have to be found between the cost of implementing a more limited number of controls and the effectiveness of these controls.

In summary, a restriction based on the country of origin of the recipients would be relatively simple to implement from a technical standpoint (the user management function being the only impacted function) but could be easily by-passed if not accompanied by the implementation of a verification and control policy, which would induce significant recurrent costs.

6.2.2. RESTRICTION BASED ON THE PAYMENT OF A FEE The restriction envisaged in this section would consist in granting access to data against the payment of a fee.

In many different domains (e.g. meteorological data for professionals, statistics, video on demand, music) platforms already exist which provide users with access to different types of data against a fee. In principle, there is therefore no technical obstacle that would make impossible the implementation of an “access fee” restriction. However, the complexity of implementation of a payment system could vary a lot depending on the implementation scenarios.

In the current context of a data access landscape where many data access platforms co-exist, several architectures could be envisaged:

• Each data access platform runs its own payment and user management systems independently from the other platforms (see figure below, left side). In this scenario, each platform would have its own payment and user management systems, and a payment on platform A would only grant access to the data available on platform A and not to the data available on platform B or platform C. In the best case (i.e. pricing policy exactly the same on

36 "Copernicus KPI monitoring" report Q3 2018 37 The estimated number of working hours per year has been calculated based on figures available on the following web pages: https://ec.europa.eu/eurostat/web/products-eurostat-news/-/DDN-20180125-1 and https://stats.oecd.org/index.aspx?DataSetCode=ANHRS


all the platforms), the pricing policy might remain relatively easy to understand but users interested in different types of data would have to proceed with payments on several platforms. In the worst case (i.e. different pricing policies depending on the platform) the Copernicus offer would be very difficult to be understood for potential buyers and would probably deter a significant part of them from using Copernicus data. In summary, this scenario would be the easiest one on a technical point of view, but it would strengthen fragmentation, complexity data access and might eventually have a negative impact on the number of users;

• Each data access platform runs its own payment and user management systems but is connected to the other platforms (see figure below, central part). In this scenario, each platform would have its own payment and user management systems but a payment on platform A would grant access not only to the data available on platform A but also to the data available on platform B or platform C. This would require that the pricing policy is the same on all platforms and that mechanisms enabling the exchange of payment-related information (each platform should be informed about payments made on another platform and, depending on the applicable payment policy, about the data "consumption" of each user on each platform) are set up. The establishment of such mechanisms would be very complex and could require, depending on the applicable pricing policy, a complete re-design of the user management functions on the various platforms. This scenario is not recommended;

• Each data access platform is connected to centralised payment and user management systems (see figure below, right side). In this scenario, a centralised payment system and a centralised user management system common to all the Copernicus data access platforms would be implemented in addition to the Single Sign-On system. This would simplify the technical implementation, since all the data access platforms should exchange information only with the centralised user management system (which would in turn interact with the centralised payment system) and not one with each other. It would however require that each individual platform is modified in order to be interfaced with the common user management system. In case of an access restriction based on the payment of a fee, this scenario should be privileged (the two other scenarios mentioned above are not further discussed in this document).

Figure 6-1: Examples of architecture (access restriction based on the payment of a fee)

Moreover, in case of a restriction based on an “access fee”, the complexity of the technical implementation would not depend only on the implementation scenarios, but also on the pricing policy itself. Indeed, many different pricing policies could be envisaged (e.g. payment for a period, payment per type of data, payment for a given volume of data, etc.) as illustrated by the few examples provided hereafter. (Note: in the hypothesis of the future availability of a unique Copernicus data dissemination platform, the technical implementation of an access restriction based on the payment of a fee would be easier than in the various above-mentioned scenarios, the main difficulty then residing in the definition of the applicable pricing policy).

A pricing policy based on the payment of a fee for a given period (e.g. annual subscription providing access to data without limitation during the subscription period) would correspond to the easiest case. The practical implementation of this kind of restriction would require a modification of the user management function (all users having the possibility to browse the catalogue but only users having


paid having the possibility to download/exploit data with no limitation during the paid period), but it would not require any form of accounting of the data "consumption" by user and would therefore limit the impact on the data dissemination chains.

On the contrary, a pricing policy based on the payment of a fee depending on the type of data (e.g. free access to archive data vs. payment of a fee for near-real time data, or free access to Sentinel data vs. payment of a fee for core service products) would be much more complex to implement since the user rights to download / exploit data would not depend on a single criterion (i.e. "has the user paid?") but on several ones (i.e. "has the user paid?" and if so " which data has the user paid for?"). In such a case, the data delivery chains would have to be modified and the ground segment would therefore be significantly impacted.

A pricing policy based on the payment of a fee for a given volume of data (whatever the type of data is) would also be very complex to implement. Indeed, it would require that for each user an accounting of her/his data consumption is made and systematically compared with the volume of data she/he has paid for, so that access can be denied when the authorised volume is reached. Such a pricing policy would be particularly difficult to implement in a context where many platforms co-exist: it would require that a same user is recognised as such on all the platforms (at minimum this would require that a common registration system exists) and that the accounting of the data "consumption" is shared with all the platforms and is updated each time data are downloaded from or exploited on one of the platforms. The impact on the ground segment would be even more significant than in the previous case.

Beyond the above considerations, the implementation of a restriction based on an “access fee”, it would be necessary that before any payment the user is provided with visibility on the available data and products.

Whereas in the context of an FFO policy users can opt for a "download and see" approach, the payment of an access fee implies that users are fully aware of what they could get from their payment. Thus, the access restriction should apply only to the download/exploitation of data but not to the possibility for the user to discover and view data (e.g. access to a catalogue of data).

In terms of costs, the definition of restrictions based on an access fee would have several implications.

First of all, studies should be funded to assess the possible pricing policies and to define the most appropriate one, depending on the objective to be reached.

Secondly, a cost would have to be foreseen for:

1. The implementation of the payment system(s);

2. The modification of the user management functions to enable them to manage different access rights to data depending on the payments made by users;

3. The modification of the data delivery chains to make sure that any user would have access to the data discovery / data view functions, but that only users having paid could download/exploit data, depending on the access rights granted to them upon payment of the fee.

These costs would depend on the envisaged type of option (individual payment and user management systems / individual but connected payment and user management systems / centralised payment and user management system). In the current situation (individual payment and user management systems per access platform), costs would have to be foreseen for each platform and for each one of the three above-mentioned cost items. The cost would be optimised in case of a centralised payment and user management system (recommended scenario).

As far as the payment system is concerned, the easiest and more secure option would be to rely on a payment service delivered by a bank. In most cases, the cost of such a service consists of three different cost items:

• A setting-up cost (generally comprised between 150 and 300 EUR, i.e. ~225 EUR in average);

• A subscription fee (generally comprised between 10 and 30 EUR per month, i.e. ~20 EUR in average);

• A fixed amount (in general 0.10 – 0.80 EUR, i.e. ~0.45 EUR in average) plus a percentage (generally comprised between 0.5 and 1%, i.e. ~0.75% in average) per transaction.

Note: the first two cost items would be sustained by the programme while the third cost item would be sustained by users.


Example: for 240 000 users, assuming that the pricing policy would be for instance to ask users to pay 100 EUR for a 6-month period (with no limitation in terms of volume or type or data during the subscription period), the total cost of the payment system for the first year would be: ~225 + ~20x12 + 240 000x2x(~0.45 + 100x0.0075)=~576 KEUR. Then, it is assumed to grow at the same pace as expected user growth (e.g. 15% yearly in the nominal scenario).

As far as the user management function is concerned, in the context of the recommended scenario (new centralised user management function), it would have to be developed from scratch. It is hardly possible to estimate what could be the cost of developing this specific function since user management functions are usually developed as part of a global system and are therefore not costed separately.

As far as the modification of the data delivery chains is concerned, it cannot be estimated since it depends on both the pricing policy and on the functional and technical architecture of each individual platform.

In addition to the costs related to the technical implementation of an access restriction based on the payment of a fee, an administrative unit(s) would have to be established and manned to deal with the administrative management of the payments (e.g. to deal with invoicing issues, rejected payments, etc.), thus inducing additional recurrent costs.

The assessment of the corresponding costs would be depending on the number of transactions and therefore on the pricing policy. Assuming for instance that the pricing policy would be to pay every 6 months for the next 6 months, that only 1% of transactions would require the intervention of the administrative unit and that this intervention would require 30 minutes, the corresponding yearly cost would be: [240 000 users x 2 transactions/user x 0.01]transactions x 0.5 hour / 1690 hours/year x 60 KEUR/person/year = 85 KEUR the first year (it would then increase by 10%, 15% or 20% per year depending on the considered growth scenario)].

The introduction of restrictions based on an access fee might also require that a "customer care" unit is created or at least that the existing support teams are strengthened (indeed the payment of a fee would imply that customers, spread around the world, are entitled to receive support). This would also induce additional recurrent costs.

Assuming that users are entitled to receive support every working day for the entire globe, i.e. 52 x 5 days = 260 days (no banking day) and considering the volume of users, one can consider that 2-3 persons would be needed for operating a helpdesk (questions then being redirected towards the support teams already put in place by Entrusted Entities). The corresponding yearly cost would therefore represent [min. 2 – max. 3 persons] x 60 KEUR/person/year = 120 – 180 KEUR.

In practice, the implementation of an access restriction based on the payment of fee would intrinsically require that there is no redistribution afterwards, i.e. that there is a second-level restriction based on the type of use (see next section which deals with restrictions based on the type of use and section 6.3.3 which deals more specifically with the option "Access allowed for all users but no right to redistribute data"). As a consequence, the costs associated to the option dealt with in section 6.3.3 (costs in the range of 4 MEUR for the first year and 3.3 MEUR for the second year, then growing at 15% CAGR in the nominal scenario) would have to be considered on top of the above yearly costs.

In summary, a restriction based on the payment of a fee would require significant modifications of the user management function as well as the implementation of one or several payment systems depending on the scenario. The complexity of implementation would be highly depending on the adopted pricing policy and may have strong impacts on the ground segment. The implementation of a fee-based access restriction would also require that there is no redistribution afterwards. An administrative unit should be set up to deal with possible payment issues and to control that data are not redistributed. "Customer care" unit(s) should also be created. In total, this would induce significant additional operational costs every year.

6.2.3. RESTRICTION BASED ON THE TYPE OF USE (INCL. REDISTRIBUTION OF DATA)

The restriction envisaged in this section would consist in granting access to data only for certain types of use and not for others. For instance, the limitation could relate to the possibility or not to redistribute data to third parties once downloaded/ accessed.

In practice, the complexity of implementation of an access restriction based on the type of use would highly depend on the concrete restrictions which would be envisaged. If the purpose was to give


access to data for some types of use (e.g. internal or scientific use) and not for other types of use (e.g. commercial value-added services), the technical implementation would remain relatively simple and could be dealt with through the modification of the user management function and the appropriate exploitation by the data delivery function of the access rights granted to registered users depending on the type of use. (Note: in such a case, the associated cost would be similar to the cost associated to the implementation of a restriction based on the country of origin of the user).

If a larger panel of restrictions was envisaged, with the ambition to have different types of restrictions depending on the different types of use (e.g. full, free and open access to data for own use, geographical restriction for the redistribution of data, payment of a fee for the provision of downstream services) then it would be necessary to thoroughly define what kind of restrictions should actually apply. The technical feasibility of the implementation would then be depending on the type of restriction to be really implemented.

In any case, and unlike other types of restrictions (e.g. origin of the user, type of user), the data access restriction due to the intended type of use can only be based on a self-declaration (declaration on honour) made by the user when registering (no evidence can be provided since there is no "document" establishing that kind of proof). Users committing to exploit data only for the intended use would be authorised to register while other could not register.

The only pre-requisite would be that the data gathered during the user registration process include a field (e.g. tick-a-box of a licence agreement) through which users would commit, this information being then used by the user registration function to determine whether the user is authorised to register or not. For registered users, the functioning of the data delivery chain would therefore remain unchanged (all registered users having a full, free and open access to data).

De facto, the control of this self-declaration could only be made posteriori (ex-post controls) – once the Copernicus data have actually been used, potentially against the pre-established rules. The controls to be performed (e.g. controlling that a user who has declared that data would be used for its "own use" are in fact redistributed) cannot be automated and would therefore require that controls are performed by human operators, thus inducing additional operational costs. However, as illustrated in the specific case addressed in chapter 6.3.3, it might happen that no effective means exist to perform controls.

In case effective controls could be envisaged, the corresponding costs would depend on the type of controls to be performed. For the purpose of cost assessment, it has been considered that the controls would be at least as much complex as those performed in case of a restriction based on the origin of the user, but would address only a part of potential users (i.e. those fulfilling the condition + those willing to by-pass the restriction). For the purpose of the assessment, it has been considered that they would represent 80% of the total number of users (i.e. 0.8 x 240 000 = 192 000). It has also been considered that the controls should be reiterated every year only for a limited number of users (mainly for private companies, the type of use for research organisations and public organisations being in general stable over time). Based on these assumptions, the estimated costs would be as follows:

• First year: [(0.05 x 4 hours + 0.20 x 1 hour + 0.75 x 0.25 hour)/1690 hours/year x 192 000 registrants] persons x 60 KEUR/person/year = ~4 MEUR

• Second year: [(1.15 x(0.05 x 4 hours + 0.20 x 1 hour) + 0,15 x 0.75 x 0.25 hour))/1690 hours/year x 192 000 registrants] persons x 60 KEUR/person/year = ~3.3 MEUR

• Following years: increase by 15% per year (based on the second-year amount) in the nominal scenario. Or by 10% or 20% per year depending in the case of the pessimistic or optimistic scenario respectively.

In summary, a basic restriction based on the type of use would be relatively simple to implement from a technical standpoint (the user management function being the only impacted function, as for a restriction based on the country of origin of the registrant), but could be easily by-passed if not accompanied by the implementation of a verification and control policy, which would induce significant recurrent costs. It is however probable that in many cases it would simply not be possible to perform effective controls.

As already mentioned for the access restriction based on the country of origin, an option to minimise the recurrent control costs could be to perform controls on a limited sample of registrants. Again, the cost for controlling x% of registrants would then correspond to x% of the above costs.


6.2.4. RESTRICTION BASED ON THE TYPE OF USER The restriction envisaged in this section would consist in granting access to data only to some types of users and not to others (these types corresponding to the user categories defined in the Copernicus Regulation).

On a technical point of view, the implementation of access restrictions based on a "type of user" (e.g. public authorities, research institutions, downstream providers, private users, non-governmental organisations, international organisations, etc.) would be very similar to the implementation of access restrictions based on the country of origin of the user and would not face major issues. The only pre-requisite would be that the data gathered during user registration include a field dealing with the user’s type, this information being then used by the data delivery function to determine whether the user is authorised to register or not, and therefore to download/exploit data or not. For registered users, the functioning of the data delivery chain would remain unchanged (all registered users having a full, free and open access to data).

Here again, the main difficulty has more an operational nature and relates to the capacity of the mechanism put in place to verify that the declared type of user is the right one.

Two main options might be considered to ensure the veracity of the statement: only ask for a declaration on honour (tick-a-box) or ask for the provision of a formal evidence (e.g. ID for individuals or official administrative documents for companies, organisations).

In both cases (declaration on honour or provision of formal evidence), the restriction could be very easily by-passed by malicious users, either through false declarations or through the provision of false evidence. The veracity of the declaration or evidence could not be automatically verified, and "manual" controls implemented by human operators should be envisaged. On-site controls might also be necessary in case of a suspicion of fraud, but it seems hardly feasible to perform such controls beyond the border of the European Union. The implementation of a restriction based on the type of user could therefore lead to a paradox situation in which the restriction could be easily by-passed by non-EU users while it would apply to EU users.

Another practical issue that would be faced in case of a limitation based on the type of user is that the distinction between different types may not be perfectly clear for some organisations (for instance a research institute could also act as a downstream provider in some cases).

For example, a user organisation could use Copernicus data for different purposes. A classic example is a National Meteorological Service (NMS). The NMS as a user would normally be regarded as a public sector organisation, but the NMS could use Copernicus data not only for weather forecasting as a public sector data provider, but also as part of a commercial service whereby it would sell products to commercial users. In such a case, the user organisation would act both as a public organisation and as a commercial entity.

For the purpose of cost assessment, it has been considered that the controls would address only a part of potential users (i.e. those fulfilling the condition + those willing to by-pass the restriction). The number of users to be considered would therefore depend on the concerned type of users: it would represent for instance ~40% of the total number of users if access was granted only to public entities, or ~65% if access was granted to public entities and research organisations (it would therefore vary between 96 000 and 156 000). It has also been considered that in this case most of the controls would be "very simple" (90%), the remaining ones (10%) being "simple", and that for the following years, it would be sufficient to control only new users since one can expect that the type of user is stable along time. Considering this, in the case of a restriction granting access only to public entities, the costs would be as follows:

• First year: [(0.10 x 1 hour + 0.90 x 0.25 hour)/1690 hours/year x 96 000 registrants] persons x 60 KEUR/person/year = ~1.11 MEUR

• Following year (nominal scenario): 0.15 x [(0.10 x 1 hour + 0.90 x 0.25 hour)/1690 hours/year x 96 000 registrants] persons x 60 KEUR/person/year = ~166 KEUR (this amount would then increase by 15% per year). The amount would be of respectively ~111 KEUR and ~222 KEUR for the pessimistic / optimistic scenarios (and would then increase by 10% or 20% per year depending on the scenario).

In summary, a restriction based on the type of user would be relatively simple to implement from a technical standpoint (the user management function being the only impacted function, as for a restriction based on the country of origin of the registrant) but would also require that controls are


implemented every year, which would induce recurrent costs. These costs would however be significantly lower than in the case of an access restriction based on the origin of the registrant.

As already mentioned for the access restriction based on the country of origin, an option to minimise the recurrent control costs could be to perform controls on a limited sample of registrants.

6.2.5. RESTRICTION BASED ON THE TYPE OF DATA / SERVICE / PRODUCT Restrictions due to nature of data/ service/ product e.g. by:

n Resolution (i.e. VHR <0.5 m)

n Copernicus Sentinels (Sentinel 1, 2, 3, 4, 5, 6, New missions)

n Copernicus Services (Land, Emergency, Atmosphere, Marine, Security, Climate Change)

n Copernicus Contributing Missions (Cosmo SkyMed, SPOT, etc.)

n Archive vs. real time, etc.

In the specific case of an access restriction by "nature of data", the restriction can only make sense if it is combined with one of the restrictions already described in the previous sections (e.g. restriction by payment of a fee, restriction by type of use, restriction by type of user, etc.).

This is a perfect illustration of the multi-level restrictions mentioned in the section entitled "preliminary considerations". For instance, the following combination of restrictions could be envisaged:

n For archive data: full, free and open data policy for all users

n For real time data:

• For EU entities: full, free and open access

• For non-EU entities: restriction by access fee

Or

• For EU entities and for non-EU public and research entities: full, free and open access

• For non-EU commercial organisations: restriction by access fee

The above example illustrates that technical and operational feasibility of an access restriction based on the "nature of data" would therefore be directly depending on the feasibility of other types of restrictions it would be combined with. It would however necessarily have a strong impact on the ground segment, since it would require that the various data dissemination chains obey to different data dissemination logics, depending on the access rights granted to users for each type of data. The same applies to the costs.

6.3. SUMMARY OF TECHNICAL / OPERATIONAL IMPLICATIONS OF CHANGING THE FFO DATA POLICY BY SELECTED OPTION

The sections below summarise the specificities of the selected three access restriction options, while not repeating the general implications.

6.3.1. FIRST OPTION: ACCESS ALLOWED ONLY FOR EU USERS To date, all the EU platforms which provide an access to Copernicus data and products require that users register before having access to the data and products on a free, full and open basis.

As mentioned earlier, considering that the effectiveness of an access restriction consisting in providing access only to EU users (and to users from Copernicus participating countries) could not be guaranteed through the implementation of an automated process (any automatic determination of the country of origin, e.g. based on the IP address, being relatively easy to circumvent with appropriate technical means, e.g. through the use of a VPN), it is assumed that the practical implementation of the restriction should be based on a declarative process.


In such a scenario, the practical implementation of the restriction would only require a modification of the registration functions so that registrants are systematically asked what their country of origin is, and that only users originating from the EU (and Copernicus participating countries) are then authorised to register (the registration being rejected for the others). In these conditions, the rest of the data dissemination chains could remain unchanged, all registered users having a free, full and open access to data.

From an operational standpoint, the only way to keep this access restriction very simple would be to base it on a "declaration on honour" from users, without any kind of control that this declaration is true. However, in the absence of any control, it would be easy for malicious users to by-pass the access restriction through false declarations, thus considerably reducing its effectiveness.

In this context, it appears that the effectiveness of the access restriction could not be guaranteed without asking registrants to provide an evidence that they originate from the EU and without putting in place the necessary resources to verify that the provided evidence is trustworthy. Another option would be to perform ex-post controls, either on the total number of registrants or only on a sample.

Controls should be performed by human operators. An administrative unit should be established to perform the necessary verifications, which would induce additional recurrent operational costs. Considering the current number of Copernicus users and based on the assumptions described in chapter 6.2.16.2 these operational costs could be in the range of respectively 3.5 MEUR and 2.5 MEUR for the first and second years, if all the evidences provided by registrants were to be verified (the cost could be lowered by controlling only a sample of registrants). Year after year these costs would evolve at the same pace as the number of users.

Even with a strict verification policy, the effectiveness of the access restriction would also depend on the ability to define unambiguously what an "EU user" is in the specific case of private companies. Such a definition would be needed to avoid that actors whose majority shareholders are non-EU can have access to Copernicus data and product through EU-based subsidiaries, for instance.

Figure 6-2: Option 1- Estimated cost for the EC (preliminary)

6.3.2. SECOND OPTION: ACCESS ALLOWED AGAINST A FEE FOR ALL USERS WITH THE EXCEPTION OF EU PUBLIC INSTITUTIONS

An access restriction based on a fee for all users except EU public institutions would require in practice that a 3-level access restriction is put in place.

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Option 1 - Estimated administrative and control costs* (€ Million)

Total cost, undiscounted Total cost, discounted

€134 M

Total Cumulative (20 years)

€224 M

(*): it includes initial set-up cost to adapt user registration system, if needed. It doesn’t include potential impacts on the Copernicus D&I delivery chains of entrusted and delegated entities, nor any impacts on Copernicus collaborative ground segment


The first level access restriction would consist in implementing an access restriction based on the type of user in order to ensure that a distinction is made between EU public institutions and the other types of users (the registration process should therefore specifically include the type "EU public institution").

As indicated earlier in this document (see chapter 6.2.4) the implementation of such a restriction would not have major impacts on a technical point of view (only the user registration function would have to be modified) but on an operational standpoint, controls would be needed and would require that an administrative unit is set up. However, one can assume that the controls would remain limited in number (~40% of users, based on the assumptions presented in chapter 6.2.4) and would be relatively easy to implement (no major difficulty foreseen to verify that a registrant indeed belongs to a EU public institution).

In such a case and based on the same assumptions as those already mentioned earlier in this document, the cost would be in the range of ~1.1 MEUR38 for the first year and in the range of ~170 KEUR for the next year in the nominal scenario of 15% user growth rate.

The second level access restriction (applicable to users not belonging to an EU public institution) would consist in implementing an access restriction based on the payment of a fee. This restriction would have significant technical implications which would strongly depend on the pricing policy that would be adopted, as already described in chapter 6.2.2.

The access restriction would require that a payment system (or several ones, depending on the retained implementation options) is implemented and connected to the data dissemination platforms.

It would also require that an administrative unit is created to deal with payment issues and that a "customer care" unit is created to operate a helpdesk.

According to the estimates provided in chapter 6.2.2., and assuming that a simple pricing policy (e.g. based on a yearly subscription providing access to all data) is implemented, the total recurrent cost for the operation of the second level restriction would be in the range of ~520 – 580 KEUR per year39.

The third level access restriction (applicable both to non-EU public institutions having paid the fee and to EU public institutions) would consist in forbidding the redistribution of data afterwards. According to the estimates provided in the next section (which deals more specifically with the option "Access allowed for all users but no right to redistribute data"), the total recurrent cost would be in the range of 4 MEUR for the first year and 3.3 MEUR for the second year, then growing at 15% CAGR in the nominal scenario.

The total cost for the implementation of this 3-level restriction would therefore be in the range of:

n ~5.7 MEUR in the first year;

n ~4 MEUR in the second year, then growing year after year at the pace of the user growth rate.

38 : [(0.10 x 1 hour + 0.90 x 0.25 hour)/1690 hours/year x 96 000 registrants] persons x 60 KEUR/person/year 39 Consisting of 60% (users other than the EU public users) of the cost of ~576 KEUR (calculated in chapter 5.2.2.3) for the operation of the payment system + 60% of the cost for the management of payment issues of ~85 KEUR + 120-180 KEUR for the operation of the "customer care" unit.



6.3.3. THIRD OPTION: ACCESS ALLOWED FOR ALL USERS (EU AND NON-EU) BUT NO RIGHT TO REDISTRIBUTE THE DATA

Reserving the right of redistribution of Copernicus data to certain selected entities based on specific agreements cannot be really considered as an "access restriction" since all users would be allowed to access the data, but the rights of use would exclude the right of redistribution. In other words, the restriction would apply to the use of data rather to the access to data.

The option could be implemented by a specific provision in the next Copernicus Delegated Regulation. In principle, the Regulation has a direct binding effect, so that no further action would be required. However, for transparency and effective implementation purposes, the restriction should also be taken up in the “Legal Notice” or any other future selected licensing document. Acceptance of the Legal Notice occurs either through registration processes or – as currently – by way of a construed acceptance through actual access and use.

From a purely technical perspective, a restriction based on the type of use would be relatively simple to implement as it would consist in making sure that users could register only upon acceptance (through a tick-a-box mechanism for instance) of special conditions specifying that redistribution of data is prohibited. Registered users would then be allowed to access data on a free, full and open basis, thus not requiring modifications of the data dissemination chains.

In practice, the main difficulties would consist in monitoring the compliance of users with the redistribution limitation.

In the optimistic situation described in chapter 6.2.3, which assumes that a posteriori controls could be effective, it would be required that an administrative unit is established to perform the necessary verifications thus inducing recurring additional operational costs. Based on the assumptions described in the above-mentioned chapter, and similarly to Option 1, these operational costs could be in the range of ~4 MEUR for the first year and ~3.3 MEUR for the second year, then growing at 15% CAGR in the nominal scenario.

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Option 2 - Estimated yearly cost (incl. payment system and administrative and control costs)

(€ Million)

Cost, undiscounted Cost, discounted

€220 M


€367M

(*): It doesn’t include potential impacts on the Copernicus D&I delivery chains of entrusted and delegated entities, nor any impacts on Copernicus collaborative ground segment



However, the most realistic scenario is that in case of a malicious redistribution of data, there would be no effective means of monitoring and control. Indeed, once a user has accessed the data, redistribution could be made in many ways which are not visible "online", including the redistribution through an ftp server, through the sending via email or even through the physical storage on devices sent via postal service. The variety of means makes that redistribution could not be monitored by any reasonable means without creating undue efforts.

As for the monitoring, also the enforcement would be faced with significant difficulties. Essentially, it would be required that either the Space Programme Regulation or the Copernicus Delegated Regulation would establish a legal basis for fines to be imposed on entities violating the prohibition of redistribution. Other consequences such as denial of access could be considered, but would again require a legal basis and a monitoring and enforcement procedure.

Finally, and likely most important, the term “redistribution” would require a clear definition and scoping.

Taken as such, redistribution could also extend to processed, modified, merged or value-added data products derived from original Copernicus data, as such original data is still included in the modified product. However, such restriction would have far-reaching and unwanted impacts on European industry, as they would essentially no longer be allowed to sell products and services derived from and including Copernicus data and information. This would have tremendous negative impacts on the desired economic exploitation of the EU investment into the Copernicus programme.

To avoid this, the limitations on redistribution should explicitly not extend to modified data. While this appears as a clear solution, the practical implementation would face the issue of clearly defining a level of data manipulation (in the neutral sense) necessary to qualify as “modification”. As example, where a user would redistribute only an extract of an original data set or would simply change some metadata, would it be sufficient to consider that data have been modified?

A possibility would be to implement an approach already used in the current Data Warehouse. A modification not subject to the redistribution limitation could be assumed if no reverse engineering from the final product back to the original data sets was technically possible. However, such a solution would likely lead to significant practical implications (How could the European Commission effectively verify the level of modification in commercial or other value-adding products? Who could verify that no reverse engineering is possible?).

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Option 3 - Estimated yearly administrative & control cost(€ Million)

Cost of audits, undicounted Cost of audits, discounted

€178 M


€298 M


7. SOCIO-ECONOMIC IMPACTS OF CHANGING THE FFO DATA POLICY BY DEINED OPTION

7.1. INTRODUCTION This chapter presents the results of the performed socio-economic impact assessment. The socio-economic impacts of the potential alternative data policy options are determined as a delta in comparison to the status-quo The analysis is aimed at providing rough order of magnitude estimates, rather than exact figures.

7.2. BASELINE: NO CHANGE TO THE CURRENT POLICY The status-quo is represented by the estimated socio-economic benefits of Copernicus under the current FFO data policy assumption.

The Value of Information (VOI) depends on a number of factors regarding the circumstances of decision makers, including the level of uncertainty that they face, what is at stake, the cost of using information, and the cost of the next-best information substitute. A review of academic literature supports the view that there is inherent value in information. Based on this review, there are valid reasons to suggest that the overall extent of the VOI is incremental. These include the ability of Copernicus to provide additional information that may assist decision making and add to analysis incrementally, rather than provide a transformational difference to a particular sector. These incremental benefits accrue over time as extended time series of observations are available, particularly for strategically important fields such as climate change. As such, Copernicus has the potential to deliver significant economic value through enhanced EO information.

A potential change of Copernicus data policy will not impact the upstream and midstream (satellite data provisioning) side of the Copernicus value chain, but rather the way users will access and use Copernicus Data and Information (D&I).

The baseline scenario of PwC’s ex-ante socio-economic impact assessment of Copernicus represents the scenario under which the Copernicus programme retains the same scope as it has currently, with the assumption that physical assets will be renewed to ensure continuity of data.

When estimating the socio-economic benefits of Copernicus, PwC rightly differentiates between intermediate users and end-users.

According to the definition used by PwC in [RD.10], “Intermediate users refer to the organisations using Copernicus D&I as input to develop value-added products that are then sold to end-users. These companies add some processing layers or additional data sources (high spatial resolution imagery, private data bases, etc.) on the top of Copernicus D&I distributed to user communities”.

PwC analysis shows (see Error! Reference source not found. below) that Copernicus D&I benefits will accrue over the period 2017-2035 ca. 136 billion Euro (undiscounted), and 89 billion Euro (when discounted at 4% WACC) in the baseline scenario (medium case).


Figure 7-1: Summary of yearly and total Copernicus benefits in Europe (source: PwC)

Particularly, in the baseline scenario, PwC estimates that Copernicus will generate in the (discounted) medium case ca. 5.9 billion Euro cumulative benefits over the 2017-2035 period for intermediate users, of which 4.4 billion Euro for the European downstream industry and 1.5 billion Euro for the European EO big data analytics players.

Figure 7-2: Summary of Copernicus benefits for European Intermediate Users (source: PwC)

End-users may be direct users (such as end-users in the oil and gas industry) or indirect users not even aware of using or benefiting from Copernicus D&I (i.e. citizens benefiting from a better air quality or a reduced pollution of groundwater).

The following Error! Reference source not found. introduces all the estimated impacts enabled by Copernicus D&I that accrue to end users that can be assessed and transformed into monetary values. Benefits are split among six families of impacts, following EARSC taxonomy on EO services.

1.9 2.3 2.7 3.2 3.64.2

5.05.7

6.47.3

8.08.7

9.310.0

10.7 11.211.7 12.1

12.6

1.9 2.2 2.5 2.8 3.1 3.5 3.9 4.3 4.7 5.1 5.4 5.6 5.8 6.0 6.2 6.2 6.2 6.2 6.2

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2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035

EU Copernicus D&I benefits over the period 2017–2035 – Baseline scenario, Medium case (€ Billion, Source: PwC analysis)

Undiscounted Discounted

€136 B

Total Cumulative (2017-2035)

€89 B

(*) Discounted at 4% WACC (Weighted Average Cost of Capital)

4.4

5.9

1.5

0

1

2

3

4

5

6

7

European EO Downstream industry European EO big data analytics Total Intermediate Users

Cumulative EU Copernicus Economic Benefits for Intermediate Users (Medium Scenario, 2017-2035, € Billion Discounted, source: PwC)


Figure 7-3: Summary of Copernicus benefits for European End Users by Application (PwC)

As shown in Error! Reference source not found., ca. €82 billion cumulative socio-economic benefits to the end users are expected to be generated over the 2017-2035 period in the baseline scenario (medium case, discounted).

Figure 7-4: Summary of Copernicus for European End Users by Theme (source: PwC)

0 5 10 15 20

Air quality and pollution monitoring and forecasting

Solar energy monitoring and forecasting

Climate modelling

Crops monitoring – support to agriculture

Forestry management and protection

Water resources management

Wetland monitoring

Ground elevation and ground motion monitoring

Urban area monitoring

Offshore infrastructure management (offshore wind)

Oil and Gas infrastructure and exploration activities (onshore and offshore)

Mining and quarrying: minerals and raw materials extraction

Coastal area monitoring

Marine resources management

Water quality monitoring Ice monitoring to support navigation/ship routing …

Ice monitoring to support ship navigation

Maritime navigation

Fire detection and monitoring

Floods moniotring and forecasting

Control of illegal, unreported and unregulated fishing activities

Maritime safety – Search and Rescue

Oil pollution monitoring

Law enforcement and international crime

Cumulative EU Copernicus Economic Benefits for End Users (Medium Scenario, 2017-2035, €B, Discounted)

Atmosphere and climate Land Built environment Marine and ocean Disasters and geo-hazards Security

Total = €81.9 B

10.2

81.9

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Land Built environment

Marine and ocean

Disasters and geo-hazards

Security Total

Cumulative EU Copernicus Economic Benefits for End Users (Medium Scenario, 2017-2035, €B, Discounted)

Total= €81.9 B

Atmosphere and climate

13%

Land34%

Built environment14%

Marine and ocean3%

Disasters and geo-hazards

27%

Security9%

Split by Theme (% of Total, Medium Scenario, 2017-2035, €B,

Discounted)


7.3. FIRST OPTION: ACCESS ALLOWED ONLY FOR EU USERS As introduced earlier the baseline data used for this preliminary analysis is taken from the PWC report [RD.10] and would potentially need further refinement, also on the basis of real figures concerning actual usage of data and service products.

Under the scope of the present contract, in order to assess the potential impacts of a change of the FFO data policy on the expected Copernicus socio-economic benefits, the study team has first analysed which elements of the Copernicus value chain would be more or less impacted by such a change, and then has proceeded to quantify/ qualify such effects in more detail.

Thus, considering the first alternative data policy option, it is foreseen that, mainly the expected benefits to the Intermediate Users will be (positively) affected, while the estimated benefits to end-users in Europe will, in the most optimistic case, not be impacted as all European users will still be able to access Copernicus D&I with the same FFO data policy.

However, this is not likely the case, as Copernicus downstream services for end users are actually developed on the basis of integrated EO data and information coming from Copernicus as well as other data sources, which are accessed and processed also leveraging non-EU data platforms and cloud services.

The analysis of economic impacts first on Copernicus European intermediate players and then on the end users is presented in the following sections.

Impacts on intermediate users

European EO Downstream players

The Copernicus programme was primarily designed to provide useful data and information in support of policy making. Such an open data programme in the field of geospatial information, providing free-of-charge satellite-based imagery, but also many sources of in-situ data, could have been seen as a threat for the private EO services industry.

Nevertheless, the European downstream industry considers Copernicus data and information contribute to strengthen their competitive advantage by offering new business opportunities and raising awareness about the benefits derived from geospatial information both in Europe and outside. Additionally, acting as participants of the Copernicus programme and recipients of research and innovation funding (i.e. H2020), European EO downstream players directly benefits from the Copernicus programme, stimulating their competitiveness on global markets.

EARSC carries every two years an industry survey assessing the European market for European downstream companies. Global European downstream industry is estimated at EUR 1.2 B in 2017 by the European Association of Remote Sensing Companies (EARSC), with a growth rate of around 10% annually. This industry supports more than 7,000 highly skilled jobs in Europe and has an average annual growth rate of 10%. In these surveys, a particular focus has been given to the Copernicus programme and the contribution of Copernicus D&I to European intermediate users. This assessment is illustrated in the table below (source: PwC on EARSC data).

EUR M, undiscounted values 2015 2017

Overall European EO downstream industry revenues

910 1,226

Revenues enabled by free Copernicus data & information (D&I)

60 92

% of Copernicus D&I enabled revenues on total

6.6% 7.5%


Table 7-1: Summary of revenues driven by free Copernicus D&I (Sources: PwC analysis on EARSC 2015 and 2017 industry surveys)

In their 2017 industry survey, EARSC also indicated that 45% of the European EO industry revenues are generated outside of Europe (exports in International markets).

Considering the option to modify the current FFO data policy to allow the access to Copernicus D&I to European users only, the delta impacts on estimated economic benefits of Copernicus D&I on European downstream industry should be ‘theoretically’ positive. As in theory, if only EU players could access Copernicus D&I, they might have a competitive advantage versus international players who could not leverage the free and open Copernicus D&I to develop business out of it. This advantage would be particularly applicable to the export market. Looking at some industry aggregated statistics, the European EO downstream industry generates 45% revenues not in the EU, and out of the total industry revenues, 10% of it leverage on ‘free’ EO data. This is probably linked to the fact that typically ‘free’ EO data relate to a resolution and revisit time which is usually worse than the commercial alternatives on the market. Thus, Copernicus, like other ‘free’ open EO data sources, does not alone satisfy the more demanding needs of the commercial demand. Combining together these considerations we assume that (theoretically) only an extra ca. 5% (10% of 45%) cumulative revenues (Euro 219 million over the 2017-2035 period in the discounted middle case scenario) could be generated by the European EO downstream industry under “Option 1” alternative data policy. This is an optimistic assumption as it would imply a doubling of European EO industry’s export turnover thanks to Copernicus.

Option 1- Access to EU users only: Impacts on the European downstream industry

PWC- Cumulative Benefits discounted (2017-2035) - Euro Billion (MEDIUM CASE)

4.4

PWC Assessment approach

Enabled revenues thanks to Copernicus D&I were directly assessed by the European Association of Remote Sensing Companies (EARSC) in their surveys (EARSC, 2015; 2017) for the EO downstream revenues, then projected in the future assuming

High estimate: contribution of Copernicus data and information is expected to reach 15% by 2020 and 20% by 2025. This contribution is then expected to remain constant after 2025;

Low estimate: contribution of Copernicus data and information is expected to reach 10% by 2020 and 15% by 2025. This contribution is then expected to remain constant after 2025.

Medium estimate is obtained by making an average between low and high estimate.

Delta impact driver Possible positive impact - restriction to EU users (provided being feasible) would theoretically provide the European industry with a competitive advantage, especially in the global and export market. Export market represents 45% of today's European EO players. According to EARSC Survey- companies indicated that 10% of overall sector revenues are driven by FREE data.

Assumed Delta Impact (as % of PwC estimate) 5%

Estimated delta impact (Euro Billion) 0.2


Table 7-2: Estimated delta impact on European downstream industry (Option 1 vs. Status Quo in the baseline-medium case scenario, discounted)

Nevertheless, when asking a selected number of representatives of the European EO downstream industry, both SME and larger players have indicated that they are and will remain in favour of an FFO data policy in the future, as they see the benefits drawn from FFO outperforming any potential drawbacks of such a policy. On the contrary, especially SMEs and innovative start-ups who leveraged Copernicus to boost their business, stated that their main concern is the long-term validity/ assurance of this data policy. Several high growth potential companies active in the Copernicus eco-system have strongly aligned their business models with Copernicus data, relying on the availability of data, as well as on the FFO data policy. As quoted from an interview with a well-known player “we have embarked on a years-long process of creating a market to demand services to the level of actually generate revenues with it (opposed to rely solely on EC/ESA/governmental grants and projects). This process is time and effort consuming and it will take years to generate a Return on Investment for them. If the data policy would be about to change, even with a years’ notice, it would cause significant harm to our company (and similar others). Same would be if the Copernicus program would discontinue or they would not put enough commitment in the quality”.

In general terms, the European EO downstream industry is obviously very happy with being able to exploit Copernicus data as they are currently doing and to create business on top of it. The interviewed companies think this is essential for the EC (and even the world) in general, as if the policy would not have been as it is, the data would have been barely used. “One can only look at the other ESA missions (e.g. Envisat MERIS, Proba-V), which have a “semi-free” policy, but just the fact that someone has to approve each individual use, makes it not feasible to build business model on top of it. And as a result, the data are barely used”.

In regard to the restriction to EU users only, the interviewed industry representatives, commented that any kind of ‘protectionism’ would generate a global war on data which will not be beneficial to anyone.

This kind of protectionism does not work in the modern world, it just makes it difficult for SMEs to exploit it. In addition, whatever the restrictions will be, the big industry will be able to circumvent it (e.g. Google and Amazon have all subsidies in Europe).

In addition, even if the current Copernicus data policy itself does not prioritise EU industry. However, other elements of the Copernicus sector do (e.g. having most coverage in Europe, priorities of L2A processing, etc.). This is considered positive as the EU industry will never be strong if it relies on EU demand mostly. As commented by Sinergise “our products, Sentinel Hub, generates most of the revenue outside of Europe”.

Similarly, not allowing access to International Big Data players would also prove to be not beneficial for the Copernicus eco-system, as on the contrary, the availability of Copernicus data on their platforms (e.g. Amazon Web Services) have made the access to Copernicus data simpler and have in turn multiplied their use. For example, none of the current DIAS platforms built by European ICT have, at this moment, close to operational for global scale production-ready applications; and it will take quite some time to get at the same level of the bigger US competitors, and even this (according to industry interviews) would not be guaranteed unless DIAS operators will put significant (additional) investments into it.

European EO Big Data Players

To assess the contribution of Copernicus D&I on the EO Big Data market we have taken the Amazon Web Service (AWS) platform as a reference example. AWS pulled in $17.459 billion in sales in 2017, up an impressive 43 percent from 2016's $12.219 billion in sales.

Taking the AWS platform as a reference, the following EO free and open data sources are currently mainly leveraged by Big Data players globally:

1. Sentinel-2 (EU)

2. Landsat 8 (NASA)

3. Next Generation Weather Radar (NEXRAD)- (NOAA)

4. SpaceNet (SpaceNet: CosmiWorks, Digital Globe, radiant solutions)

5. GDELT - A Global Database of Society (supported by Google Jigsaw)

6. NASA Earth Exchange (NEX) data sets (NASA)


7. OpenStreetMap (OSM)- created and maintained by volunteers, supported by University College London)

8. DigitalGloble Open Data (DigitalGlobe)

9. Data from USGS' and NASA's Moderate Resolution Imaging Spectroradiometer (MODIS) - NASA

10. Data from NOAA's Geostationary Operational Environmental Satellites (GOES) - NOAA

11. UK Met Office Global and Regional Ensemble Prediction System (MOGREPS) – UK Met Office

12. OpenAQ which aggregates physical air quality data (PM2.5, PM10, CO, SO2, NO2, O3, and BC) from public data sources provided by government, research-grade and other sources

Since, for the time being statistics on AWS use by EO data source are not available, we have conservatively assumed that all the above sources equally contribute to AWS business, so Sentinel-2 and therefore Copernicus would contribute to ca. 8% to the global EO Data Analytics business.

NSR in their “Big Data Analytics via Satellite, 2nd Edition” report, published in August 2018, predict that Big Data solutions will continue on a sustained growth path over the next decade, largely driven by Earth Observation and M2M/IoT applications in several key markets. Specifically, Big Data analytics via satellite will generate close to $18.1 billion in cumulative revenues by 2027 (of which 46% driven by EO), owing to increasing demand from end users in the transportation, government & military and energy sectors. The highest increase in usage across key verticals will be seen in the use of satellite imagery for data analytics applications, growing at an impressive 23.5% CAGR through to 2027.

The total global cumulative revenues expected to be generated by EO Data Analytics will reach $8.3 billion (source: NSR).

According to a recent Cloud Security Alliance (CSA) report, Amazon Web Services is the most popular public cloud infrastructure platform, comprising 41.5% of application workloads in the public cloud. While Amazon has long been viewed as the dominant provider of public cloud infrastructure, Microsoft Azure is gaining ground quickly in application workload.

Azure currently holds 29.4% of the installed base, measured by application workloads. Google Cloud Platform trails with 3.0% of application workloads followed by IBM SoftLayer, Rackspace, and a long tail of providers that comprise another 20.7% of the market. The scope of long tail provider usage is surprising and may indicate the market is still at an early stage of maturity.

So, we assume that together Amazon, Microsoft and Google Cloud platforms represent ca. 75% of the global market.

Applying this share to the global EO data analytics market revenues predicted by NSR, it results that the US platform leaders would generate $6.2 billion cumulative revenues by 2027. Projecting this figure into 2035 at a lower CAGR than the previous decade (assumed equal to 7% as the EO data and services sales market CAGR forecasted by Euroconsult), results into ca. $11 billion cumulative revenues for the Top US players by 2035. Out of this, based on the current most used EO open data sources by these players, we assume that Copernicus D&I would contribute to ca. 8% of their business, therefore generating total cumulative $0.9 billion for them, which converted at an average USD vs EUR exchange rate over the 2017-2035, translates into ca. 0.7 billion Euro undiscounted (0.5 billion Euro discounted). This would represent a 30% increase in the revenue of EU big data industry compared to the status quo scenario.

Option 1- Access to EU users only: Impacts on the European EO big data analytics industry

PWC- Cumulative Benefits discounted (2017-2035) - Euro billion (MEDIUM CASE)

1.5


PWC Assessment approach EO Big Data revenues were extracted from the Northern Sky

Research (NSR) report (NSR, 2016) and discussed with experts from the field of Big Data to isolate the contribution of Copernicus D&I.

Delta impact driver Possible positive impact - restriction to EU users (provided being feasible) would theoretically provide the European EO data analytics industry with a competitive advantage versus Top US players.

Assumed Delta Impact (as % of PwC estimate) 30%

Estimated delta impact (Euro billion, discounted) 0.5

Table 7-3: Estimated delta impact on European EO data analytics industry (Option 1 vs. Status Quo in the baseline-medium case scenario, discounted)

Summary and limitations of this assessment approach

In summary, the performed analysis, shows that Option 1 could translate into a theoretical 0.7 billion gain for the European intermediate users, cumulated over 2017-2035, compared to the status-quo. This would represent about 10% of the total estimated socio-economic benefits of Copernicus.

Figure 7-5: Summary of Copernicus benefits for European Intermediate Users in case of

Option 1 “access to EU users only” data policy

However, it is important to notice, though, that the above ‘Rough Order of Magnitude’ estimates represent a purely theoretical simplistic exercise which has several limitations, including the following:

n It assumes that it would be possible to effectively restrict the use to purely ‘owned’ European players

n It assumes that European players with their captive access to Copernicus D&I will be able to satisfy the demand and generate the same equivalent revenues as their US players (e.g. the DIAS platforms being able to offer a compelling service as AWS)

4.4

1.5

5.9

0.2

0.5

0.7

0.0

1.0

2.0

3.0

4.0

5.0

6.0

7.0

European EO Downstreamindustry

European EO big data analytics Total Intermediate Users

Cumulative EU Copernicus Economic Benefits for Intermediate Users (Medium Scenario, 2017-2035, € Billion, Discounted)

Delta Option 1

Status-quo

Delta = 11%

Source: SpaceTec Partners analysis on PwC data


n It assumes that other nations, and particularly the US will not restrict their open data too. In case they would, probably the market dynamics would stay the same and the delta impact of a European only restriction will be null, if not negative.

A more detailed sensitivity analysis to the above variables could be performed in a follow-on study if the EC would wish to seriously consider proceeding implementing this option.

Impacts on end users

In order to assess the socio-economic delta impacts of the first alternative data policy option “Access allowed to EU users only” for European end-users, when compared to the status quo, it is important to understand the key socio-economic benefit drivers of the major Copernicus D&I applications (see Annex for further details), along with the consolidated results presented by PwC.

The trend in EO downstream service delivery, which is already visible today, increasingly foresees the development of new products and services through integrating EO data and information coming from different sources. Also, the EO value chain is truly global, many EU end users are using Copernicus through applications at least partly developed outside of the EU. By limiting access to EU users only, such applications would not exist anymore. Limiting Copernicus D&I access to EU users would limit the integration of Copernicus into global big data, and EO value chains, and thus, limit the uptake of Copernicus end users.

This is particularly evident when considering Sentinel-2 data, which, as mentioned before, already today are well integrated into non-EU big data platforms.

Taking a rather conservative approach, the study team has made a bottom-up analysis of the end-user benefit drivers and assessed which ones are more or less impacted by a potential access restriction to EU users only. It has been assumed that those applications which mainly directly address EU public institutions through the Copernicus Services will not be impacted by Option 1 type of restrictions, while the others, mainly addressing the commercial market will be. For the most likely impacted applications, an average 50% chance of benefit loss has been applied over the reference period (figure based on industry interview), with higher values at the start (75%), but then gradually improving with the ramp-up and uptake of European players’ capabilities and platforms (Figure 7-6).

Figure 7-6: Ramp-up assumptions and benefit drop over time

The results of such analysis (summarised in Figure 7-7) show a cumulated benefit loss of ca. -16% for end users, equal to ca. -13 billion Euro over the reference period, or ca. 0.6 billion Euro annual loss (calculated on the basis of PwC estimated discounted value in the baseline-middle case scenario).


Figure 7-7: Summary of Copernicus benefit loss for European End Users in case of Option 1

“access to EU users only” data policy

Total impacts

The combined socio-economic impacts on both intermediate and end users amount to a delta benefit impact of -13% versus the status quo, equivalent to ca. 12 billion euro cumulatively over the reference period (over 600-800 million Euro loss on an annual basis), as summarised in the figure below.

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Total Benefit Loss= €12.7 B

(-16% vs Baseline, Medium Scenario)

Cumulative EU Copernicus Economic Delta Benefit Impact for End Users (Delta Impact vs Medium Scenario, 2017-2035, €B, Discounted)

Euro Billion


Table 7-4: Estimated delta socio-economic impact on European users (Option 1 vs. Status

Quo in the baseline-medium case scenario, discounted)

In essence, many Copernicus applications used in the EU are currently developed with the support of non-EU providers (data platforms or application developers). If non-EU players cannot access Copernicus data anymore, European users of these applications will be negatively affected, until a comparable European offer is developed. On the other hand, European data platforms and application developers would benefit from this policy. Overall, the losses for EU end users would largely outweigh the gains for EU data platforms and downstream players.

7.4. SECOND OPTION: ACCESS ALLOWED AGAINST A FEE FOR ALL USERS WITH THE EXCEPTION OF EU PULIC INSITUTIONS

Concerning the option of introducing charges to all Copernicus (with the exception of EU public institutions), based on the performed legal analysis one has to consider that a charging approach going beyond the direct costs of delivering user requests would likely not be possible with a view to the applicable EU legal framework.

A key benchmark considered to estimate the economic impacts of Option 2 is the Landsat commercialisation case, already introduced in Chapter 3.5.4, which had shown that the commercialisation of Landsat was not a success.

Basically, assuming that Copernicus would be able to determine a ‘fair price’ to sell its data and information, based on the lessons learned by the Landsat programme, which saw a drop of 97% of ordered products over a ten year period since when a payment fees was introduced (see Figure 3-1), we can deduce that by introducing a cost (as Landsat, e.g. based on recovering the programme costs) to access Copernicus D&I, it is foreseeable that Copernicus users, not belonging to EU public institutions, might drop by 97% in 10 years’ time, similarly to the Landsat experience. On the other hand, introducing a pricing based on marginal cost, instead, would eventually cause a less dramatic impact on Copernicus usage, but would unnecessarily put an extra burden on Copernicus access with no real economic benefits in return, and most importantly determine only an efficiency loss to the Commission, in addition to the estimated costs of establishing a payment system and the administrative costs of managing it, as outlined in Chapter 6.3.2.

0.7

-12.7 -12.0

-14.0

-12.0

-10.0

-8.0

-6.0

-4.0

-2.0

0.0

2.0

Increase ofintermediate users'

benefitsLoss of end users'

benefits Total loss

Cumulative EU Copernicus Economic Delta Benefit Impacts in Option 1(Medium Scenario, 2017-2035, € Billion, Discounted)

Increase of intermediate users' benefits

Loss of end users' benefits

Total loss

Total Delta vs Status Quo

= -13%



Indeed, a study conducted in 2015 by John Loomis, Steve Koontz, Holly Miller, and Leslie Richardson about “Valuing Geospatial Information: Using the Contingent Valuation Method to Estimate the Economic Benefits of Landsat Satellite Imagery”, concluded the following:

“While the U.S. government does not charge for downloading Landsat images, the images have value to users. The paper demonstrates a method that can value Landsat and other imagery to users. A

survey of downloaders of Landsat images found: (a) established US users have a mean value of $912 USD per scene; (b) new US users and users returning when imagery became free have a mean value of $367 USD per scene. Total US user benefits for the 2.38 million scenes downloaded is $1.8 billion

US. While these benefits indicate a high willingness-to-pay among many Landsat downloaders, it would be economically inefficient for the US government to charge for Landsat imagery.

Charging a price of $100 USD a scene would result in an efficiency loss of $37.5 million a year. This economic information should be useful to policy-makers who must decide about the future of this and

similar remote sensing programs”.

Thus, on top of the negative legal and technical implications, the above considerations should be sufficient to pose doubts on the realization of any socio-economic return generated by implementing a charging scheme to access Copernicus D&I.

Nevertheless, a high-level assessment of the socio-economic impacts of implementing a Copernicus data policy as described in Option 2 has been attempted by the study team.

Taking the Landsat benchmark data point, it has been assumed that Copernicus benefits for non-institutional/ public users will drop by -97%. This would imply that:

n Copernicus benefits for intermediate users will drop by -97%

n Copernicus benefits for commercial end users will drop by -97% too

Applying the above hypotheses to the Copernicus baseline benefit assessment, results in a total cumulative benefit loss of ca. -50% vs the status quo, equal to 43.4 billion Euro expressed in terms of discounted values over the reference period (Figure 7-8), composed of a:

n Benefit loss for intermediate users of 5.7 billion Euro cumulatively (ca. 0.3 billion Euro per year)

n Benefit loss for end users of 37.7 billion Euro cumulatively (ca. 2 billion Euro per year), as laid out in Error! Reference source not found.

Figure 7-8: Option 2- total estimated delta benefit loss for Copernicus users (cumulative

2017-2035, discounted, baseline scenario- medium case)

-5.7

-37.7-43.4

-50.0

-45.0

-40.0

-35.0

-30.0

-25.0

-20.0

-15.0

-10.0

-5.0

0.0

Loss of intermediateusers' benefits

Loss of end users'benefits Total loss

Cumulative EU Copernicus Economic Benefits Loss in Option 2(Medium Scenario, 2017-2035, € Billion, Discounted)

Loss of intermediate users' benefits


Total loss


= -49%



Table 7-5: Option 2 - Estimated benefit loss for end-users (cumulative 2017-2035,

discounted, baseline scenario- medium case)

The estimated impacts under Option 2 assume, as in the case of Landsat commercialisation benchmark, that a price to sell Copernicus D&I is set to cover Copernicus programme costs (committed in the 2014-2020 period40). So, if such a price was set by dividing EC Copernicus MFF 2014-2020 expenditures divided by 20 years to set a long-term target, it would give a potential annual price per user in year 2021 (year of entry into force of the potential Option 2 data policy) equal to ca. 785 euro/user (or ca. 65 euro per month per user), as shown in the figure below. Assuming this price flat over the period and matching this with the expected reduction of users (as per Landsat case), it will result in a total revenue for Copernicus equal to ca. 1 billion Euro (undiscounted, and 0.9 billion Euro discounted) over the analysed period.

Figure 7-9: Analysis of potential Copernicus user subscription revenues in case of Option 2

So, in summary, accounting for the potential programme cost recovery and the total expected benefit loss would amount to ca. 42 billion Euro over the analysed period (Figure 7-10).

40 2017 Copernicus Work Programme European Commission, 2017.

Impact driver-Baseline scenarioPWC- Cumulative Benefits discounted

(2017-2035) - €B (MEDIUM CASE)% Institutional Users (public

users) SourceOption 2 Benefit Loss

(€B)Air quality and pollution monitoring and forecasting 10.0 37% Assumpion based on available EUMETSAT statistics 6.2Solar energy monitoring and forecasting 0.1 30% STP assumption 0.1Climate modelling 0.1 37% Assumpion based on available EUMETSAT statistics 0.1Crops monitoring – support to agriculture 14.8 22% Assumption based on available CLMS statitstics 11.2Forestry management and protection 5.5 22% Assumption based on available CLMS statitstics 4.2Water resources management 2.2 50% Assumption based on available CMEMS statistics 1.1Wetland monitoring 4.9 22% Assumption based on available CLMS statitstics 3.7Ground elevation and ground motion monitoring 0.6 22% Assumption based on available CLMS statitstics 0.4Urban area monitoring 0.7 22% Assumption based on available CLMS statitstics 0.6Offshore infrastructure management (offshore wind) 4.5 22% Assumption based on available CLMS statitstics 3.4 Oil and Gas infrastructure and exploration activities (onshore and offshore) 6.3 22% Assumption based on available CLMS statitstics 4.8 Mining and quarrying: minerals and raw materials extraction 0.1 22% Assumption based on available CLMS statitstics 0.0Coastal area monitoring 1.4 22% Assumption based on available CLMS statitstics 1.1 Marine resources management 0.4 18% Assumption based on available CMEMS statistics 0.3Water quality monitoring Ice monitoring to support navigation/ship routing in the Baltic region 0.0 18% Assumption based on available CMEMS statistics 0.0Ice monitoring to support ship navigation 0.7 18% Assumption based on available CMEMS statistics 0.5Maritime navigation 0.1 18% Assumption based on available CMEMS statistics 0.1Fire detection and monitoring 5.8 100% All direct users as EMS 0.0Floods moniotring and forecasting 16.7 100% All direct users as EMS 0.0Control of illegal, unreported and unregulated fishing activities 0.0 100% All direct users as Security service 0.0 Maritime safety – Search and Rescue 0.8 100% All direct users as Security service 0.0Oil pollution monitoring 0.4 100% All direct users as Security service 0.0Law enforcement and international crime 5.8 100% All direct users as Security service 0.0Total 81.9 37.7% of total 100% 46%

-

50

100

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200

250

0

50000

100000

150000

200000

250000

300000

350000

2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035

Option 2 - Potential Copernicus price per user vs forecasted number of users

N. unique users Annual revenue for Copernicus (M€)

Average annual price/ user= €785*

(*): Price set to theoretically recover Copernicus programme costs over the next 20 years, taking year 2020 user data as starting point. Source: SpaceTec Partners analysis

N. Users €M

Cumulative revenue for Copernicus over the period = 1 billion Euro (undiscounted)


Figure 7-10: Total estimated delta economic impacts of Option 2 (cumulative 2017-2035,

discounted, baseline scenario- medium case)

7.5. THIRD OPTION: ACCESS ALLOWED FOR ALL USERS (EU AND NON-EU) BUT NO RIGHT TO REDISTRIBUTE THE DATA

As discussed in the previous section, it is important to define the scope and meaning of the term “re-distribution” in the framework of Copernicus D&I access. For the scope of this study, we have considered the definition of the term, where re-distribution does not extend to processed, modified, merged or value-added data products derived from original Copernicus D&I.

In this case, only intermediate users who will redistribute the data with no modifications will be penalised, while the one who would add any kind of extra value, processing or even just changing the formats of delivery would still be allowed to distribute Copernicus D&I. Naturally, all end users benefiting of Copernicus D&I will not be affected by the policy change.

It is also important to underline that DIAS-es players will not be subject to such a restriction.

In regard to Copernicus intermediate users, we can again distinguish between ‘big data analytics players’ and ‘downstream value-added service providers.

When considering the big data analytics players, further distinctions must be considered:

1. Players who simply make Copernicus data sets available as they are and re-distribute them through their or others’ platforms (e.g. Sentinel-2 data from Copernicus OpenHub made available on big data platforms)

2. Players who take Copernicus data sets, add scripts or perform any other kind of modifications in whatever form and redistribute them through their or others’ platforms (e.g. a company adding a script on Sentinel-2 data from Copernicus OpenHub platform and redistributing them on their platform).

For the players belonging to the first group, Option 3 data policy will have an impact, while for the players belonging to the second group, Option 3 will have no impact instead.

Nevertheless, here it is important to specify the definition of Option 3 constraints in more detail. Already today, big data platforms make Copernicus Sentinel data available but in a different format than what it is currently provided by ESA OpenHub (e.g. AWS). Would a change of format be an accepted

-43.4

0.9

-42.5

-50.0

-45.0

-40.0

-35.0

-30.0

-25.0

-20.0

-15.0

-10.0

-5.0

0.0

5.0

Total benefit loss forusers Programme revenues Total loss

Cumulative EU Copernicus Delta Economic Impact in Option 2(Medium Scenario, 2017-2035, € Billion, Discounted)

Total benefit loss for users

Programme revenues

Total loss


= -48%



modification under Option 3, or not? If yes, then, Option 3 will have a negligible impact on type 1 players too. So, the question of why to implement such an option at all would arise. Thus, it is assumed that a change of format of the image/data with the same characteristics of the original file would not be allowed under Option 3.

Considering the estimated economic benefits of Copernicus for European big data analytics players amount to Euro 1.5 billion in the status quo (discounted, medium case scenario – PWC), restricting the redistribution of data to all players except for the DIAS-es players would create a competitive advantage and thus a positive benefit impact for the DIAS-es players. This impact would be in the same order of magnitude of the one estimated in Option 1 (access restriction for non-EU players).

Option 3- : Impacts on the European EO big data analytics industry

PWC- Cumulative Benefits discounted (2017-2035) - Euro billion (MEDIUM CASE)

1.5

PWC Assessment approach EO Big Data revenues were extracted from the Northern Sky

Research (NSR) report (NSR, 2016) and discussed with experts from the field of Big Data to isolate the contribution of Copernicus D&I.

Delta impact driver Possible positive impact - restriction to EU users (provided being feasible) would theoretically provide the European DIAS-es players with a competitive advantage versus other players (including leading non-EU players).

Assumed Delta Impact (as % of PwC estimate) +30%

Estimated delta impact (Euro billion, discounted) 0.5

Table 7-6: Estimated delta impact on European EO data analytics industry (Option 1 vs. Status Quo in the baseline-medium case scenario, discounted)

The ‘downstream value-added service providers’ will theoretically not be impacted if Copernicus data policy would not allow third parties to distribute unmodified Copernicus D&I only, as by definition value-added service providers already add some value on Copernicus D&I to develop products, services or applications to end customers. However, these players are already now taking advantage of the availability of Copernicus data sets on big data Cloud based platforms, finding easier and more efficient to process and add value on these platforms rather than on the Copernicus OpenHub. This is, though, expected to be overcome thanks to the setting up of the DIAS-es. Thus, in essence, it is assumed that Option 3 will not impact the expected Copernicus benefits for the downstream players in the long-run. However, Option 3 might impact both the downstream players and certain categories of end-users (basically the ones not leveraging Copernicus services information directly) in a transition period, essentially, until the DIAS-es/ Copernicus platforms will be effectively replacing the big data platforms to access Copernicus D&I. This transition period is assumed to last for 10 years and ending in 2031.

Thus, it is assumed that starting from the introduction of the policy in 2021 there will be first a drop of the benefits of the downstream players’ and certain types of end-users (as the ones affected by Option 1), equal to 50% (derived from industry interview), but then gradually improving with the ramp-up and uptake of the DIAS-es, resulting in a 18% average benefit drop over the ramp-up phase. A summary of these assumptions is provided in the table below.


User category Assumptions Total cumulative benefit loss vs the status quo (Medium scenario, 2017-2035, €B, discounted

Downstream players

• 2021: 50% benefit drop assuming that half of downstream players use non-EU big data platforms to access Copernicus data

• 2022-2031: benefit drop gradually decreasing to 0% in 2031

-0.6 €B (-15% vs status quo)

End-users • 2021: 50% benefit drop as per downstream players

• 2022-2031: benefit drop gradually decreasing to 0% in 2026

-4.3 €B (-5% vs status quo)

Table 7-7: Ramp-up assumptions and benefit impact (Option 3)

Overall, Option 3 would generate a total cumulative benefit loss vs. the status quo of -4.4 billion Euro over the reference period. A summary of expected delta impacts on Copernicus socio-economic benefits in the case of Option 3 is provided in the figure below.

Figure 7-11: Total estimated economic delta impacts of option 3 vs. the status quo

(cumulative 2017-2035, discounted, baseline scenario- medium case)

In a nutshell, if some platforms are not allowed to redistribute Copernicus data anymore, this will negatively affect the European users of these platforms, until a comparable European offer is developed. On the other hand, European platforms allowed to redistribute Copernicus data would benefit from the policy. Overall the losses for EU end users would outweigh the gains for EU platforms.

-0.1

-4.3 -4.4

-5.0

-4.5

-4.0

-3.5

-3.0

-2.5

-2.0

-1.5

-1.0

-0.5

0.0

Loss of intermediateusers' benefits

Loss of end users'benefits Total loss

Cumulative EU Copernicus Economic Delta Benefit Impact in Option 3(Medium Scenario, 2017-2035, € Billion, Discounted)

Loss of intermediate users' benefits


Total loss


= -5%



8. POLITICAL/STRATEGIC IMPLICATIONS OF CHANGING THE FFO DATA POLICY

8.1. GENERAL CONSIDERATIONS As stated in Article 4 of the Commission’s Proposal for a Regulation of the European Parliament and of the Council establishing the Space programme of the Union and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1285/2013, (EU) No 377/2014 and Decision 541/2014/EU. The EU Space Programme (including Copernicus) shall aim to the following strategic general objectives:

a) Provide, or contribute to the provision of, high-quality and up-to-date and, where appropriate, secure space-related data, information and services without interruption and wherever possible at global level, meeting existing and future needs and able to meet the Union's political priorities, including as regards climate change, sustainable development and security and defence;

b) Maximise the socio-economic benefits, including by promoting the widest possible use of the data, information and services provided by the Programme's components;

c) Enhance the security of the Union and its Member States, its freedom of action and its strategic autonomy, in particular in terms of technologies and evidence-based decision- making;

d) Promote the role of the Union in the international arena as a leading actor in the space sector and strengthening its role in tackling global challenges and supporting global initiatives, including with regards to climate change and sustainable development.

e) Then, for Copernicus, the Programme shall have the following specific objective: “to deliver accurate and reliable Earth Observation data and information, supplied on a long-term basis, to support the implementation and monitoring of the Union and its Member States' policies in the fields of the environment, climate change, agriculture and rural development, oceanography, meteorology, civil protection, safety and security, as well as the digital economy”.

As underlined in points a), b), d) and e) above, allowing access to Copernicus D&I to the widest audience, and allowing Copernicus to contribute to global challenges, while enhancing the digital economy (which is by definition global) represent fundamental objectives at the heart of Copernicus. Restricting Copernicus use would question the overall strategic intent and purpose of Copernicus Programme.

All the above objectives, in order to be pursued, require access to reliable and continuous streams of information. This access must be guaranteed in the long term, the quality of the data continuously verified, and the sources of data maintained and improved. The six services of Copernicus represent the practical implementation of this need for strategic information in six critical areas.

Earth Observation is a critical source of data to enable monitoring and modelling of major issues of global importance using technology that overcomes many of the limitations of national or localized observation systems. Copernicus fulfils the need for Europe to have access to this information. Even if Copernicus does not fulfil all the requirements defined by its objectives, it allows Europe to:

■ Have its own guaranteed sources of information in a number of critical areas

■ Be in a good position in order to negotiate access to third party’s data sources, therefore completing its sources of information

■ Feed its science community with critical data in all the domains mentioned above

■ Make available appropriate and timely information for the definition, application and monitoring of implementation of its policies

■ Play a role proportionate to its importance in international fora, be them related to climate, environment, natural resources, ocean conditions and resources, disaster management, water, food, urban developments, land use and more


Copernicus contributes therefore towards maintaining the strategic influence of the EU in important global policy areas, but it also becomes a pillar of the definition and implementation of policies within the Union.

Given that addressing climate change through mitigation and adaptation strategies is a top priority of the EU, with the European Climate Change Programme (ECCP) and the EU commitment to achieving multilateral agreement on climate change within the auspices of the United Nations Framework Convention on Climate Change (UNFCCC), it is apparent that the most significant impact of Copernicus will be to collect observations to enhance the modelling of future climate change scenarios. Better observations will enable greater confidence in models and forecasts which will impact on strategies for mitigation of and adaptation to climate change, and support EU positions at international negotiations. In addition to supporting the EU’s global and internal efforts to mitigate and adapt to climate change, the Copernicus programme will enhance the EU’s understanding of and options to respond to other key policy areas with environmental impact.

The EU has a wide range of policy initiatives and strategies directly related to the environment, including the Europe 2020 Strategy and the EU Sustainable Development Strategy. In particular, Copernicus can assist in understanding and taking steps towards objectives in a number of areas including:

n Biodiversity (e.g. deforestation, desertification, threats to sensitive ecosystems) as expressed through the Biodiversity Action Plan;

n Promotion of improvements in air quality in Europe to improve public health through the Clean Air for Europe programme;

n Prediction, response and reconstruction associated with major natural disasters (through the Space and Major Disasters Charter and the Community Civil Protection Mechanism);

n Improved targeting of humanitarian aid and assistance programmes to developing countries; and

n Better compliance with funding conditions by recipients from the Common Agricultural Policy.

Investment in Copernicus infrastructure also contributes to the EU’s industrial policy, by developing the EU space sector and by facilitating the development of a downstream sector which can take advantage of new data series to sell services to end users on a commercial basis. This supports the EU’s endeavours to promote economic growth and employment, based on new technologically-led industries that have an environmental focus.

All the themes outlined above require intense and focused cooperation with international partners, both in sharing data sources, mutually complementing each other’s observation systems, and in terms of scientific cooperation and in coordinating efforts for tackling these global issues.

This by itself goes against any attempt at protecting our data, either by applying restrictions or financial penalties.

The Copernicus FFO data policy was introduced to fulfil the above strategic objectives and to contribute to make Earth a more sustainable and safer planet. The aspirations were, and supposedly still are, to provide an impact at European level, but also globally, as Climate Change, Environmental, Emergency and Security issues are global challenges that require global coordination.

The picture outlined in this section demonstrates clearly the role that an FFO type data policy can play in support of European strategies and ambitions.

Apart from any consideration of technical issues, practical difficulties, operational costs, reverting to protectionist data policies or, even worse, daydreaming of revenues covering costs, even partially, would destroy the work done up to now, would go against European strategic interests, such as those outlined here, and would breach European and international laws, to a large extent based upon strong political orientations of the EU and its Member States.


Ultimately, all interviewed stakeholders are supportive of the current FFO data policy and they believe it is the optimal option for Copernicus., please find below a figure summarising the outcomes.

Figure 612: Stakeholder responses on the relevance of the driving principles of the

Copernicus data policy

A move by the EU towards a more restrictive data policy, namely restricting access for all non-EU users or even introducing a charging system, could have far-reaching implications on international policy level and could eventually reverse all the developments over the past years towards open data in Earth Observation or even more generally open governmental data. Developing or other countries, which so far have not yet moved towards open data policies, could refrain from moving further into this direction. Countries with open data policies could review their applicable data policies and could introduce similar type of restrictions for foreign users. In addition, it is not excluded that certain countries (namely the US) understand the EU move as a barrier targeting their national industry and could consider trade policy measures far going beyond the limited area of Earth Observation.

All the above strategic and political aspects would need to be carefully pondered and their implications taken into consideration, if the EU would ever decide to move away from the current FFO Copernicus data policy.

8.2. STRATEGIC IMPACT BY POLICY OPTION In order to compare the different policy options, the impacts of each policy options on each key driving strategic principle of the Copernicus data policy have been qualitatively assessed on a scale from 0-4 (where ‘=’ means no impact, and 4 very positive or negative impacts; positive impacts = ‘+’ and negative impacts =’-‘).


Figure 8-1: Impact on Copernicus policy’s strategic/ political drivers by option

Strategic principle/option Option 1

EU-users only

Option 2

Payment of a fee for non-public users

Option 3

No redistribution

Continuity of the programme (wrt to initial objectives) ---- ---- ----

Use of Copernicus in EU and national/regional policies

+ (privileged access for EU players)

+ (privileged access for public users)

=

Maximise use and distribution of data -- ---- ---

Promote the European strategic role in international cooperation ---- ---- ----

Protect and strengthen the European downstream industry + ---- =

Strengthen European upstream and midstream industry = = =

Maximise the indirect and direct economic return --- ---- --

Reducing direct costs = + =

Where ‘=’ means no impact, and 4 very positive or negative impacts; positive impacts = ‘+’ and negative impacts =’-‘

Positive Negative Neutral


9. CONCLUSIONS Based on the analyses to date and based on the results of interviews conducted, FFO seems to be still the preferred option, as its advantages outweigh its disadvantages when compared to alternative options.

The following table provides with the key highlights of the performed assessment from a legal, technical/operational, and socio-economic stand point.

Option 1: Access allowed to EU-users only

Option 2: access allowed against a fee for all users with the exception of EU Public Institutions

Option 3: access allowed for all users (EU and non-EU) but no right to redistribute the data

Legal implications

While specific limitations of access to non-EU users are generally possible when falling under the general restrictions such as security or foreign policy, broad general access restrictions for non-EU users would contradict numerous commitments and standards supported by the EU on international level. At least theoretically, such broad exclusions could also be considered critical with a view to WTO commitments of the EU under the GATS. For persons and entities based in the EU, but under foreign control or ownership, Art. 42 of the Charter of Fundamental Rights, Art. 15(3) TFEU as well as specific legislation, namely Regulation (EC) No 1049/2001, Commission Decision of 12 December 2011 on the reuse of Commission documents, set clear limitations.

A charging approach going beyond the direct costs in relation to user requests would likely not be possible with a view to the applicable EU legal framework, including Regulation (EC) No 1049/2001, Commission Decision of 12 December 2011 on the reuse of Commission documents and the INSPIRE Directive and it would also contradict numerous commitments and standards supported by the EU on international level.

The applicable EU legislative framework, namely Commission Decision of 12 December 2011 on the reuse of Commission documents, seems to restrict the possibility for such option considerably, as it broadly allows (re-) use of data for all commercial and non-commercial purposes. Data shall be generally made available for reuse without restrictions41. Limitation, if any, should apply only to data “as is”, whereby allowed thresholds for modifications must be clearly established and regularly reviewed in order to create legal certainty for users and to avoid negative implications on usage and economic impacts.

Technical/operational implications (cumulative delta costs, discounted values)*

Main difficulty related to the control and auditing of users’ declarations about their origin

134 MEUR

A 3-level access restriction by: type of user, payment of a fee, and no redistribution of data. Complexity linked to the pricing policy, and to monitoring/auditing

220 MEUR

Main difficulty related to monitoring/ auditing the non-redistribution compliance

178 MEUR

41 While it appears that re-distribution limitations should only apply to the original Copernicus data set and not to any modified data, it is highly complicated to draw a reliable line between the two which stands a practical test.


Socio-economic impacts (cumulative delta impacts, discounted values)

Intermediate users’ benefits

+0.7 BEUR -5.7 BEUR -0.1 BEUR

End users’ benefits

-12.7 BEUR -37.7 BEUR -4.3 BEUR

Programme cost recovery

0 +0.9 BEUR 0

Total impacts

-12.0 BEUR

(-13% vs status quo)

-43.4 BEUR

(-48% vs status quo)

-4.4 BEUR

(-5% vs status quo)

Table 9-1: Summary of estimated impacts by alternative Copernicus data policy option

(*) Note that for Option 2, the estimated costs assume a "best case" scenario, with a simple pricing data policy (costs would increase with a more complex data policy). Moreover, even though not possible to provide a cost estimate, this option might induce strong impacts on the ground segment (depending on the retained pricing policy) with strong cost implications.

In addition, the technical/operational cost estimates do not include any potential impact on the Copernicus ground segment, which assessment would require a dedicated study per se.