According to Article 2(4) of the Berne Convention, each Member Country determines independently the copyright protection granted to official texts such as legislation, administrative regulations, and court decisions. The matter is not harmonzed in existing EU copyright legislation, including the InfoSoc Directive (Directive 2001/29/EC) and the new Copyright Directive (Directive (EU) 2019/790). This means that there is currently no unified regime as to the copyrightability of official texts in the EU. Nonetheless, access to information laws in the EU have introduced a legal framework that can support the availability and access to official texts.

Access to official texts of EU institutions

Public access to institutional documents: Regulation 1049/2001

Regulation 1049/2002 lays down the general principles and limits on access to official texts of EU institutions (Parliament, Council, Commission). It aims to ensure that citizens can exercise their right of access in the easiest possible way. It lays down the principle that all documents of the institutions should be accessible to the public. Access can be requested in an electronic form and institutions must, within 15 working days of registering the application, either grant or refuse access to the document requested.

The institutions can refuse access to a document where disclosure:

1. would undermine the protection of:

• the public interest as regards public security, defence, international relations and the financial, monetary or economic policy of the EU or of an EU country, or
• the privacy and integrity of an individual, in particular in accordance with EU legislation regarding the protection of personal data;

2. would undermine a person’s:

• commercial interests, court proceedings, and legal advice, or
• the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure;

3. would seriously undermine the protection of the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Re-use of Commission documents: Decision 2011/833/EU

The Commission has set an example to public administrations in making statistics, publications and the full corpus of Union law freely available online. Decision 2011/833/EU sets out the specific rules which aim to achieve a broad reuse of such documents. This Decision applies to public documents produced by the Commission or by public and private entities on its behalf which (1) have been published by the Commission or by the Publications Office on its behalf through publications, websites or dissemination tools; or (2) have not been published for economic or other practical reasons, such as studies, reports and other data.

The general principle is that all Commission documents shall be available for reuse

• for commercial or non-commercial purposes 
• without charge
• without the need to make an individual application

However, there are certain conditions that reusers need to adhere to. Firstly, it's imperative for reusers to acknowledge the source of the documents. Secondly, they must ensure that they do not distort the original meaning or message of the documents. Lastly, it's important to note that the Commission will not be held liable for any consequences that arise from the reuse of these documents.

CC Licenses: Commission Decision of 22.02.2019

To further its open access and reuse policy, with a Decision from 2019 the Commission formally adopted the use of Creative Commons licenses.

• CC BY 4.0 was adopted as an open licence for the Commission’s reuse policy under Decision 2011/833/EU
• CC0 1.0 (equivalent to public domain dedication) was adopted for raw data, metadata or other documents of comparable nature.

Access to official texts of EU Member States

Things become trickier when it comes to open access to official texts of Member States. On an EU level, Directive 2019/1024 on open data and the re-use of public sector information (Open Data Directive) lays down the legal framework for the reuse of public-sector information such as geographical, land registry, statistical or legal information held by public-sector bodies or public undertakings, and of publicly funded research data. It aims to boost the socioeconomic potential of public-sector information, for example by making it more easily available for start-ups and small and medium-sized enterprises (SMEs).

The directive promotes the use of open data (data that individuals can use freely and share for any purpose). Public-sector bodies and public undertakings must make their documents available in any pre-existing format or language and, where appropriate, by electronic means in formats that are open, machine readable, accessible, findable and reusable, complete with their metadata.

While the directive does cover "documents produced by public sector bodies of the executive, legislature or judiciary", there is still a considerable difference between Member States regarding open access to legislation and local case law. In most Member States, there is usually one or several big legal information providers which are still gatekeeping access to such documents. Nonetheless, in recent years, more and more Member States have registered progress in this respect, with the Netherlands being one of the best examples.

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CuratedAI's CEO Siyanna Lilova presented the topic of Open access to official texts in the EU during the 2023 Creative Commons Global Summit. You can access the presentations slides here.

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