Defending Openness in the European Union

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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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