UK Government: Open Standards Must be RF, not FRAND

As regular readers of this column will know, one of the key issues for open source - and openness in general - is what is meant by open standards. Too loose a definition basically allows the other kinds of openness to be undermined from within...

Share

As regular readers of this column will know, one of the key issues for open source – and openness in general – is what is meant by open standards. Too loose a definition basically allows the other kinds of openness to be undermined from within the citadel.

The key issue here is whether open standards mean Restriction/Royalty-Free (RF), or Fair, Reasonable and Non-Discriminatory (FRAND). As I wrote at the end of last year, one of the biggest defeats in this area was the downgrading of the European Interoperability Framework's definition of open standards from RF:

The intellectual property – i.e. patents possibly present – of (parts of) the standard is made irrevocably available on a royalty-free basis.

to RF or FRAND:

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.

Shortly after that, by contrast, we had what looked like a local victory in the shape of a UK "Procurement Policy Note - Use of Open Standards when specifying ICT
requirements" [.pdf] which stated:

Government defines "open standards" as standards which...have intellectual property made irrevocably available on a royalty free basis

But then a few months later we were told:

A Cabinet Office spokeswoman said the open standards policy was "not set in stone" and the UK definition of an open standard had been up for consultation since it invited the public to complete a survey on the matter in February.

So, against a background of all this to-ing and fro-ing, the big question remains: Where does the UK government really stand on open standards?

And thanks to this Written Answer, we finally know the status of that Procurement Policy Note (aka Action Note 3/11 31 January 2011) and its definition of open standards:

Mike Weatherley (Hove, Conservative)

To ask the Minister for the Cabinet Office whether his Department has considered the merits of fair, reasonable and non-discriminatory (FRAND) licensing obligations in respect of procurement policy Action Note 3/11, issued on 31 January 2011.

Francis Maude (Minister for the Cabinet Office; Horsham, Conservative)

The Government require that their ICT should be built on open standards, wherever possible, to improve competition and avoid lock-in to a particular technology or supplier.

Fair, reasonable and non-discriminatory (FRAND) specifications may present some difficulties for the open source software development model in terms of patents and royalties. To deliver a level playing field for both open source and proprietary software, open standards are needed.

So there we have it: the UK government officially recognises that open standards must be RF, as specified in the Procurement Policy Note, not FRAND, because the latter " may present some difficulties for the open source software development model in terms of patents and royalties," which is absolutely spot on.

What's also exciting is that the reply explicitly mentions the reason for choosing RF over FRAND - "[t]o deliver a level playing field for both open source and proprietary software" - and that this will "improve competition and avoid lock-in to a particular technology or supplier" - all things that I and many others have been saying for years. It's great to see that the message seems to have got through.

I hesitate to claim this as a victory for good sense, given the twists and turns of the previous year, but it does seem promising. Assuming that we don't see another U-turn, it is also impressive that a UK Minister can respond to a Parliamentary question with this level of technical savviness: kudos to him and his advisers....

Update: Hot off the presses of Hansard (well, almost), here's an interesting follow-up question to the above, from the same Mike Weatherley, and the response from the same Francis Maude:

Mike Weatherley (Hove, Conservative)

To ask the Minister for the Cabinet Office what estimate he has made of the cost to industry of offering software and technology products to government on a royalty free basis.

Francis Maude (Minister for the Cabinet Office; Horsham, Conservative)

Government have no intention of demanding the intellectual property for all ICT solutions it specifies. The proper place for discussion of these rights is during contract negotiation.

The current policy states that intellectual property relating to solutions provided by the private sector for public sector contracts should remain with the party best placed to exploit them. This ensures that, wherever sensible, business can retain their IP to use with other clients and internationally.

As outlined in the Government ICT Strategy, published in March 2011, the Government is committed to creating a level playing field for open source software for Government ICT procurement. We recognise that open source solutions present significant opportunities for improved value for money and the stimulation of a more competitive ICT environment. We are therefore taking positive action to encourage the use of open source in departments, where cost is equal to, or less than, the lifetime costs of proprietary software.

The Government will publish guidance on intellectual property related to public procurement later this year, to raise awareness in the public sector and industry.

Again, there is the same, sensible reply: "We recognise that open source solutions present significant opportunities for improved value for money and the stimulation of a more competitive ICT environment," with an interesting clarification: "We are therefore taking positive action to encourage the use of open source in departments, where cost is equal to, or less than, the lifetime costs of proprietary software."

On the other hand, I do wonder why Mr Weatherley is so obsessed with RF licensing. His second question suggests that he is not fully aware that it is only being discussed in the context of open standards, not all government procurement, as Maude's reply confirms.

As such, the only "the cost to industry" would be a theoretical cost to those companies that control proprietary standards – which are, I would guess, exclusively foreign-owned. I'm sure that most such businesses would prefer their proprietary standards to be used by the UK government, even if they waive royalties in the UK, rather than finding themselves left out from contracts completely. This, in fact, is one of the other reasons why RF-licensing is fair: even if there are no royalties, being the owner of technologies that are included in open standards is a big advantage.

But the key point is that there would be absolutely zero "loss" to UK firms, which is what I presume an English MP is concerned about, rather than worrying about possible minor losses of overseas competitors to the indigenous software industry....

It will be interesting to see what the UK government's "guidance on intellectual property related to public procurement" turns out to be – and how open-source friendly it proves.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

"Recommended For You"

UK Government Promises to Go Open - Yet Again Double Standards on Open Standards