The European Commission just adopted and published its communication "Towards interoperability for European public services". It consists of several documents, and the part of it that I'm going to comment on now is the new revision (version 2) of the European Interoperability Framework, a set of interoperability-related procurement guidelines for "public administrations establishing new European public services". That document is available here.
The EIFv2 gave rise to quite a bit of controversy in recent months, with lobby groups claiming that the intiative wouldn't create a level playing field for open source software. I blogged about the debate on several occasions.
Looking at the final document now, I am delighted to see that the Commission adopted a pragmatic and inclusive definition of open standards. That part of the document was the primary bone of contention, and the compromise that has ultimately been found is absolutely consistent with the middle ground I outlined two months ago -- in this post.
When I discussed my thinking, I was concerned about a communication breakdown. There was a certain camp claiming -- falsely, in my opinion -- that FRAND (fair, reasonable and non-discriminatory) licensing wouldn't be compatible with open source licenses. They said only royalty-free, or generally restriction-free, licenses would work for open source. Others said that FRAND licensing -- an approach favored by the EU in some vey important contexts -- should be fully recognized as an element of open standards. That camp mostly consisted of patent holders who don't want to check in their intellectual property rights at the door when doing business with governments, and who were concerned about FRAND potentially appearing to be a second-class citizen in the world of standardization. Those concerns related to some organizations' demands to declare FRAND licensing less open than royalty-free terms.
The two camps appeared irreconcilable, but I believe the Commission has solved the conundrum.
The European Commission's definition of open specficiations (open standards)
5.2.1 Specifications, openness and reuse
The level of openness of a formalised specification is an important element in determining the possibility of sharing and reusing software components implementing that specification. This also applies when such components are used for the establishment of new European public services.
If the openness principle is applied in full:
All stakeholders have the same possibility of contributing to the development of the specification and public review is part of the decision-making process;
The specification is available for everybody to study;
Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software.
Note that the above definition describes a state of "openness [...] in full". Everything included in the definition -- FRAND as well as royalty-free licensing -- is, therefore, recognized as fully open. In my view, that makes sense. One can grant a royalty-free license on a non-open standard, and one can charge FRAND royalties (and/or impose other FRAND terms) on an open standard without "closing" it that way.
Level playing field: let open source and proprietary software compete and customers benefit
The key part is that the Commission wants that any intellectual property relevant to standard be licensed -- whether on a FRAND or royalty-free basis -- "in a way that allows implementation in both proprietary and open source software." In a Q&A document, the Commission states the intention behind this requirement:
In this way, companies working under various business models can compete on an equal footing when providing solutions to public administrations while administrations that implement the standard in their own software (software that they own) can share such software with others under an open source licence if they so decide.
That's a clear reference to some people's demands for a "level playing field". I mentioned that some claimed only royalty-free licenses would provide open source and proprietary software with equal opportunities. But that's not true: open source companies can also license patents and other intellectual property from right holders if necessary. What's key is to ensure that FRAND license terms for open standards can work for companies distribution software under open source licenses.
The compromise roadmap I published in October called on both camps to meet each other half way. I said that some FRAND terms don't work for open source while others do, and open source-compatible FRAND appeared to me to be the logical compromise. Quite apparently, the Commission took the same approach in its effort to support the open source model without favoring it over proprietary software. There are major right holders in Europe who hold patents on standards, and the EU always has to balance its love of open source with its responsibility for economic growth. It's all about balance as opposed to playing favorites the way some lobbyists self-servingly demanded.
Neutrality concerning (reasonable) open source licenses
The aforementioned principle of inclusiveness and a level playing field also appears to govern the Commission's approach to competition between different open source license. I just quoted the Q&A document's reference to "shar[ing] such software with others under an open source licence". Note that the Commission says "an open source license". Yes, "an". One of many.
It doesn't favor any particular license such as the GPL over the Apache Software License or the BSD License over the Mozilla license: that's a fight for different camps of the FOSS community, but for policy makers it's better to stay out of it.
The EIF doesn't even promote the EU's own EUPL in connection with open specifications, although the EUPL is generally the recommended open source license for public administrations in Europe.
The Commission is clearly neutral on the choice of an open source license. It doesn't define open standards in a way that meets the extreme requirements of licenses that were purposely designed to be incompatible with intellectual property licensing. There's no shortage of licenses out there that can deal with FRAND-based standards, provided that the relevant FRAND licensing terms are compatible with free and open source software.
The Commission even recognizes that in some situations it may make sense to choose a standard that may not be fully consistent with its definition of open specifications:
However, public administrations may decide to use less open specifications, if open specifications do not exist or do not meet functional interoperability needs.
In all cases, specifications should be mature and sufficiently supported by the market, except if used in the context of creating innovative solutions.
Once again, the Commission shows it's above the fray. It wants to leave as much as possible to market dynamics. The Commission contents itself with requiring open specifications -- whether FRAND-based or royalty-free -- to be compatible with open source licensing, enabling competition between the models as well as competition between different open source licenses. The best is the enemy of the good. Public administrations need solutions regardless of ideology. That's the focus of the EIF the way I see it. A beacon of pragmatism, and exactly the approach I hoped for two months ago.
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