The governmental draft bill: "for growth and activities" aims, which is laudable, to renew with growth so as to modernise the economy by streamlining rules which, today, constitute an obstacle to creation and innovation.

To do this, the government has attacked the rules of regulated professions, qualified as evil, and which deserves the legislative guillotine so as to clean them up! Clerks to the Commercial Courts, notably described as annuitants have not been spared!

One of the proposals put forward to achieve the objectives falls within the very trendy framework of open data. In this spirit, the government has planned to allow for opening up and free sharing of data from the National Trade and Companies Register.

For those who are not experts, it is useful to reiterate the role of this Register held by the National Intellectual Property Institute.

The National Intellectual Property Institute (INPI) is responsible for centralisation, at national level, in the form of original documents, of information and deeds issued by Trade and Companies Register (RCS) held locally by each of the clerks at the Commercial Courts and registry offices to the Civil Courts with commercial jurisdiction. All of this information and these deeds form the National Trade and Companies Register (RNCS).

Originally, one of the objectives of this mission of centralisation of data by the INPI for the RNCS was to secure legal information of companies. Centralisation of a second original copy of each deed and document filed in the various trade and companies registers would allow to cushion the risk of physical damage to this information in the event of any fire, for instance, leading to destruction of paper archives at a registry office.

14 million euros paid to the INPI

At the time of computerisation and holding electronic legal registers, the need for physical security has significantly disappeared. Today, the role of the INPI in holding the RNCS can be resumed as storing all deeds and documents issued and to be issued, as a paid for service, 2 data licences (IMR and balance sheets) for companies with commercial information, with these licences being created by GIE Infogreffe on behalf of the INPI.

So as to be complete on the issue, it is necessary to reiterate that companies pay, for each formality, a tax of €5.90 paid to the INPI by clerks. In 2013, the amount collected stood at €14 M. What is the purpose? This is a good question... Insofar as the INPI database and licences are none other than those provided by GIE Infogreffe.

It is important, whilst the wording of the draft bill is in the hands of eminent legal experts of the Council of State, to put things right. So let us try to explain, without passion or dogma, the difficulties faced by this current text.

The desire to show open data and company data in order to facilitate the use thereof so as to encourage economic development not falling in the framework of simple assumptions. Whilst no European country has implemented this, it is because it is this liberty which rules of law oppose, primarily aimed at protecting individuals.

Personal data of directors is protected.

Consequently, the subject of property of personal data taken from the RCS and RNCS is the first pitfall which should be analysed so as to determine the terms and conditions of distribution of this data.

Article 2 of the Data Protection and Freedom of Information Act and directive 95/46/EC define personal data as data allowing for identification or which can lead to identification of a physical person. This definition concerns all information concerning company directors entered on the Trade and Companies Register. Nationality, date and place of birth and of course the full name and address are indicated.

Generalisation of transactions concerning personal data of which collection is the compulsory counterparty of access to a large number of services has led to this unfounded belief becoming widespread.

This personal data is not subject to appropriation, with this principle being reiterated by the Council of State in its report: digital and fundamental rights: "50 proposals by the Council of State to allow digital services to favour individual and general rights".

In this report, the Council of State promotes the right to: "self determination of information" described as an "objective" which gives a meaning to all pre-existing rights.

Personal data may be transferred after explicit consent.

However, the government bill raises another problem of legality. Article 6 of directive 95/46/EC makes provision that "such information can only be collected for given, explicit and legitimate purposes, and not processed subsequently in any manner which is incompatible with these purposes".

However, personal data of physical persons was only collected for a single reason: that of appearing on the RCS and RNCS and for the sole purposes resulting from these registers. This data was never collected to subsequently appear in any "open licence" which can be seen by all online, notably to be found in any "google" search. Database sellers, operators of these new markets, cannot in principle use this personal data.
Article 7 of Directive 95/46/EC makes provision that "Member States make provision that processing personal data may only be undertaken if the person concerned has undeniably given his consent".

The same principle is laid down by article 7 of the Data Protection and Freedom of Information Act.

If the RCS and RNCS are legally "exempt" from gaining consent, this is not the same if data is then taken from the RCS or the RNCS to be sent to the public for use.

Data should be made anonymous.

Article 13 of law no. 78-753 of 17 July 1978 known as the CADA makes provision that "Public information including personal data may be the re-used either when the person concerned has consented thereunto, or if the holding authority is able to make these anonymous or, failing anonymity, if a legislative or regulatory provision allows".

The CNIL additionally requests, by virtue of the Data Protection and Freedom of Information Act, anonymity of personal data appearing in administrative documents.

In clear, each manager, company director, and trader shall issue its identity, address and age. This represents just as much personal data. If as planned by the governmental bill, this data should be used for commercial purposes, this would only be possible with the consent of the party concerned.

Let us gauge that the Council of State should note these obstacles which, a priori, have escaped the grasp of the party drafting the draft bill and show the non compliance of licences, today which should be paid for, issue by the INPI to professional users.

And what about the intellectual property of files?

As it may be observed that it is not legally possible to request clerks and their GIE Infogreffe to abandon their right of intellectual ownership resulting from their capacity of database producer (Directive 96/9/EC of 11 March 1996 - Article L 341-1 of the Intellectual Property Code - Article L 112-3 of the Intellectual Property Code).

In short, according to Law, only Clerks are entitled to authorise extractions from their databases and distribution of their data. The draft bill, in that it does not gather the consent of Clerks as to use of their rights, would constitute dispossession.

From a legal plan, such a situation requires a compensation mechanism. However, law requires protection for database producers for 15 years following their last investment. This point did not escape the Rapporteur, Richard Ferrand, who clearly indicated this in the report on the draft bill. Finally, it would be amusing to see the State required, by legal rules, to pay compensation to ensure free distribution of RNCS data!

All of the obstacles indicated show, clearly, that the bill cannot be maintained.
Reason would require a viable solution for all to be planned. This is why we are proposing to distribute an open licence for data for instance on the ETALAB site. This choice of a key bill for the government would avoid duplicating the INPI solution. Who is better placed than clerks whose duties are to receive, control, enter and approve information, deeds, and documents filed by companies at the time of fulfilling their legal formalities to ensure distribution of open data in respect of the law.

We are ready.

This column was published on 28 November 2014 on the website of the Huffington Post.