Workshop: Legal aspects of free
and open source software
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87
trademarks or specific technologies that should be, as a general rule, banned).
The NOIV’s examples of award criteria are a good source of inspiration, as they make use
of terms, concepts and objectives that are as neutral as possible. In contrast, it is
interesting to note that the explicit reference to the EUPL by the Spanish interoperability
framework has been source of discomfort for FOSS-based IT providers,
given that a vast
majority of open source applications are available under other licences (mainly of the GPL
family) that do not allow relicensing under EUPL. Fortunately, the law explicitly allows the
use of other licences, and one must hope that Spanish administrations carefully and wisely
assess the necessity to specifically require the EUPL
173
.
The current public procurement regulatory framework seems therefore not to constitute, as
such, a hindrance to the adoption of FOSS by administrations. It provides ways to develop
practices that aim at levelling the playing field or preferring the procurement of FOSS, if
there is a will to go in that direction. The analysed cases illustrate that this
last condition is
probably the one that requires the most attention: whereas the policy shapers are aware of
the advantages of FOSS, policy takers show different degrees of resistance, which is
motivated by multiple factors that must be duly analysed and taken into consideration, and
that are sometimes overlooked.
Passing laws could be contemplated as a means to override the resistance effect thanks to
the compulsory nature of the instrument used. The Spanish and Italian experiences
illustrate, however,
that such exercise is complex, as the adopted law is likely to interfere
with copyright, competition or procurement laws and principles. The law must therefore be
cautiously drafted and should not damage competition nor result in a technological
stagnation.
The Spanish law is quite astonishing as it is drafted in a way that it
allows administrations
to share software using FOSS licences. Besides the symbolic aspect of this explicit
authorisation, one would tend to wonder what concrete change is brought by such law to
the general regulatory framework: would such FOSS licensing
practice not have been legal
anyway without such positive statement? Furthermore, a devil’s advocate would even argue
that the Spanish law restricts FOSS licensing practices in administrations as it seems to
impose the use of copyleft licences. On the one hand, such requirement restricts the
spectrum of possible scenarios (as copyleft can generate compatibility problems in
heterogeneously licensed developments)
174
, whereas on the other hand,
it implies the use
of licences that must be handled with more care (as copyleft usually entails more
obligations to comply with). In contrast, the Italian law considers FOSS as a self-justifying
criterion (whereas the choice of proprietary solution must be specifically explained) but it
does not further require a specific type of FOSS licence.
173
On this regards, see the ISA programme’s “Standard “sharing and re-using” clauses for contracts”,
https://joinup.ec.europa.eu/sites/default/files/ISA_Share_Reuse_D_2%201%20Standard%20Sharing%20and%20
re-using%20clauses%20for%20contracts_final%20version.pdf
.
174
P
H
.
L
AURENT
, “Free and Open Source Software Licensing: A reference for the reconstruction of “virtual
commons?”,
op. cit.
Policy Department C: Citizens' Rights and Constitutional Affairs
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88
ANNEX: COMPARISON TABLE
Dutch
NOIV
Piedmont
Region’s Act
Spanish
NIF
UK
Government
ICT
Strategy
Walloon
IMIO
French
Ayrault
Circular
Action
Policy
Legislation Legislation Policy
Policy
Policy
Decision
level
National Local
National National Local
National
Action level
Any level
Local
Any level
National
Local
National
Objectives
Awareness
Level
playing
field
Preference
Preference
Reuse of
software
Reuse of
software
Level playing
field
Software
mutualisation
Use and
mutualisation
of FOSS
Level playing
field
Measures
Taken
Promotion
Support office
Guidance &
Support
Guidelines on
award criteria
Law
establishing
procurement
rules
Authorisation
to use FOSS
licences
Obligation to
reuse
Technology
transfer
centre
Toolkit
(guidelines)
Expert panels
Asset
registers &
app. store
Centre of
excellence
Creation of
an inter-
municipal
public
company
Selection of
credible free
software
alternatives
Expert
networks
Free software
monitoring
Contribution
to FOSS
development
“Culture” of
FOSS use
Licensing
Open Source
EUPL
considered
Free Software
EUPL (default
licence)
Other
copyleft
licences
Open Source
Open Source
GPL mainly
involved
Free Software
Effectiveness
Objectives
not reached
Law in
application
Court
validation
Awareness
Reuse
Some
positive
discrimination
The strategy
is lobbied
against
Too
early to
draw
conclusions
Objectives
reached
so far
Too early to
draw
conclusions
Philippe Laurent is Senior Researcher at the CRIDS (Research Centre - Information, Law and
Society of the University of Namur) and Lawyer at the Brussels Bar (Marx Van Ranst Vermeersh &
Partners). As a researcher, Philippe mainly studies intellectual property licensing, data and software
protection, copyright limitations, open source and open content schemes, cloud computing and the
governance of the Internet. He wrote several reports and articles on
open source licensing and is
currently working on the development of a local FOSS expertise centre. Philippe’s work as attorney-
at-law focuses on intellectual property & IT law, data protection, trade practices, distribution
agreements, advertising, as well as on broader commercial law matters. Philippe is also appointed by
the CEPANI as Third-Party Decider for ".be" domain name disputes and is alternate member of the
copyrights and neighboring rights section of the Intellectual Property Council of the Belgian Ministry of
Economy.