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Defending Openness in the European Union
July 02, 2008
Posted by: Glyn Moody
One of the most surprising recent developments in the field of openness has been the rise of Europe as a key player there. This is not the result of some grand plan, despite what the conspiracy theorists in proprietary software companies might think, but simply a natural evolution of the European Union itself, and a consequence of its attempts to become more tightly integrated.
That's simply not possible unless open standards are used, since it is plainly impractical to force every member-state to do things in exactly the same way when it comes to computing. Instead, an open framework provides the best mix of local freedom – that strange EU concept of “subsidiarity” - without sacrificing the “union” part of the entity's name.
Given that companies favouring closed-source, proprietary approaches can hardly argue with that logic, the battle has moved on. What we are seeing now is a desperate rearguard action to redefine “open standards” to embrace elements that are decidedly closed.
The OOXML fiasco at ISO is perhaps the highest-profile manifestation of this, where a closed, proprietary standard was gradually made to seem open. Here, the “open standard” label represents simply a box that must be ticked to keep that pesky EU and its communistic member states happy, not a real Damascene conversion to fairness and a level playing-field.
But alongside this, there's another front in this war between proprietary and public interest – one that's rather more subtle, and therefore probably easier for the extremely well-oiled lobbyist machine to subvert. It concerns the very nature of open standards. This is what the European Interoperability Framework for pan-European eGovernment Services (EIF) has to say on the subject in its report:
To attain interoperability in the context of pan-European eGovernment services, guidance needs to focus on open standards. The following are the minimal characteristics that a specification and its attendant documents must have in order to be considered an open standard:
The standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.).
The standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee
The intellectual property - i.e. patents possibly present - of (parts of) the standard is made irrevocably available on a royalty-free basis.
There are no constraints on the re-use of the standard.
The key issue here is that of patents. The EIF rightly insists that everything must be on a royalty-free basis. Opponents of free software and fans of intellectual monopolies - who seem to believe that they have a right to extract licensing fees from what are supposed to be totally open standards - are trying to paint this as discriminatory, when it is exactly the opposite: anything but royalty-free will lock out all open source solutions, which are unable to charge their users. By contrast, proprietary companies can not only function perfectly well with royalty-free open standards, but positively thrive, as the Internet and Web both show.
The wonderfully-named Digistan site has a good analysis of what is likely to happen next:
We therefore expect to see concerted lobbying against the EIF/2.0 definition by the patent industry, by Microsoft, BSA, ACT, and the many dependent organizations that represent Microsoft business partners (ironically called "the European software industry" by some). Specifically, we expect to see accusations that the no-patents definition of open standards discriminates against specific providers, that it damages innovation, that it ignores the value of patents, that it will result in innovative firms leaving Europe, that it is illegal under trade agreements, and so on. We expect to see pressure applied on the Commission from the highest levels of US power.
Against this background, it is important for the truth about royalty-free access to any putative intellectual monopolies (which probably aren't even valid in Europe) to be circulated as widely as possible. Royalty-free is the only way to establish a truly level playing field – which was the whole point of adopting open standards in the first place. Allowing anything else would be a total negation of what openness is all about.
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About the author
Glyn Moody Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).
Comments received
SPM said on Friday, 04 July 2008
This is simply an enforcement of existing EU anti-corruption and free competition rules which require that EU government bodies do not mandate requirements that require purchase or licensing of a proprietary product or technology - essential legislation to prevent corruption in government, and ensure free competition.
It should be noted that the use of patent or trade secret encumbered technologies aren't forbidden by these laws - the laws only require that such proprietary technologies are NOT MANDATED by putting them in a government specification or incorporating them into an interoperability requirement.
Michael Tiemann said on Friday, 04 July 2008
This is an important story, and thus one that should be told without resorting to partisan rhetoric. I think that painting members of the European Union as "communistic" dilutes an otherwise vital message, which is that open standards are the digital equivalent to "equal protection under the law". You are quite correct to point out the hypocrisy of proprietary actors who want to tax open standards via software patents (which is both bad policy and a terrible misunderstanding of law). But I think the case is better made with the neutral voice you use in the 2nd half of the article, rather than the partisan tone of the 1st half.
Glyn Moody said on Friday, 04 July 2008
Thanks for the comment. Perhaps I should point out that my use of "communistic" was somewhat tongue-in-cheek, and meant to be read in the voice of OOXML proponents.
Perhaps it's also worth pointing out that in Europe, being called a communist isn't really an insult in many cases (and I certainly would never use it as such) - the Italians like communism so much they actually have several communist parties...
Mark Blafkin said on Sunday, 06 July 2008
Gyn, there are so many things wrong with this post, it's hard to know where to start. First, OOXML would pass the EIF as far as I can tell, so not sure you should be commending the EC for that. Second, it is you and the EC who are trying to redefine what open standards mean. RAND has been a part of the standard definition within the world's standards bodies as long as they have existed. Finally, you are too smart to be peddling blatant falsehoods like "anything but royalty-free will lock out all open source solutions, which are unable to charge their users." Mr. Tiemann's company charges his users a whole lot for use of its software. And it integrates both proprietary and non-GPL components in order to implement standards and interoperability protocols that cannot be implemented in GPL. Open source companies have NO problem implementing RAND standards, it is only companies that dogmatically follow the Free Software religion that can have issues.
Glyn Moody said on Sunday, 06 July 2008
@Mark: Thanks for the comments.
I have no problems with OOXML itself, or with a standard like it passing EIF: I have problems with the deeply flawed ISO process that claims to have passed it. That's a separate issue.
RAND may well have been part of the standards process, but that was a process defined in a world where proprietary software was the norm. That is precisely the problem with RAND: it locks us into the old proprietary world.
Mr Tiemann does indeed charge his users, but not so that he can pay royalties; Red Hat *could* pay royalties, but a new open source project starting in a bedroom (hello, Linus) certainly couldn't.
And this isn't a matter of free software “religion”, it's a matter of definition. You are implicitly redefining open source to mean something capable of accommodating RAND, and trying to split it off from free software, which is not: I don't think many in even the most pragmatic wing of open source would accept that kind of distinction.
SPM said on Monday, 07 July 2008
Proprietary by definition means owned by a proprietor. If OOXML cannot be used without paying or getting permission from a proprietor, then it is proprietary by definition. Any RAND standard or any standard which imposes conditions and restrictions on its use by adopters is and should be considered a proprietary standard.
Government should not mandate such proprietary standards for exactly the same reason. In the EU, it is illegal for employees in government to specify anything in a way that mandates purchase from a particular proprietor or gives control of the tender or contract to a particular proprietor.
These anti-corruption and fair competition rules have been rigorously in the EU to other fields for decades - for example, I am not allowed to specify a proprietary product like "Corus P365 110 kph bridge parapets". Instead I have to specify generically for example as "N2 parapets to EN1317". Strangely, IT specifiers have been allowed to blatantly breach these rules until no