Workshop: Legal aspects of free and open source software
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The precise definition of the term 'open standards' is less important than a clear expression
of the reasons why open standards are desired in the first place. These reasons should form
part of the requirements for any procurement.
For procurement of software in general, it is good practice for public authorities to
implement software based on open standards – as defined by their economic effect of
fostering a fully competitive market
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. Supporting technologies without considering their
degree of openness and their ability to foster a fully competitive market is harmful to
competition and net social and economic welfare. It is thus expensive, by definition, over
the long term. While software based on open standards may not always be available, public
agencies should encourage its development, and indicate their preference for open
standards to vendors though preferential procurement of software based on open standards
wherever it is available. Similarly, public agencies should use open standards wherever
supported by the software they implement, in preference to any other technologies
supported by such software.
The main advantage of open standards is the capacity to be interoperable with other
software systems. By definition, a software application based on open standards is fully
interoperable with any other application using the same standards, and it is possible for
any other application to use the same standard. By consistently requiring and using open
standards, software buyers try to achieve “vendor-independence”, which is to retain the
ability to change software products or producers in future without loss of data or significant
loss of functionality. This is achieved because one vendor’s software, if it is based on open
standards, is fully compatible with other software available from other vendors; therefore,
the customer does not get locked-in to that vendor simply because of the standards used.
Data created with that software is still fully usable with software from another vendor.
However, this goal is often incompatible with implicit or explicit criteria for software
purchasing, in particular those requiring that new software should be compatible with
previously purchased software. Buyers who use the latter criterion rather than a general
requirement for open standards or vendor-independent interoperability in effect remain
locked in to their previously purchased software. Thus, even if they see the benefits of open
standards and believe in interoperability, buyers whose preference for new software is
based on compatibility with previously installed software are not, in practice, supporting or
benefiting from interoperability.
2.2
Open source software
Open source software, Free Software, or libre software, also called FLOSS, is software that
a user can:
use for any purpose
study, by examining the source code
modify and improve
distribute, with or without modifications
This basic definition of FLOSS is equivalent to the Four Freedoms of the Free Software
Foundation (FSF, which officially defines "free software") and the Open Source Definition
maintained by the Open Source Initiative (OSI).
Open source software is copyrighted by its authors, and is made available under copyright
licences that provide the freedoms required by the above definition.
Most major free software or open source licences have gone through a formal process of
approval by the Open Source Initiative, and are listed on the OSI website; these licences
are OSI certified and authorised to use the "Open Source Initiative Approved License"
mark. Of course, licences that meet the terms of the Open Source Definition but have not
been formally processed by the OSI (and thus not listed on their website) are also open
source licences.
91 Ghosh, R. A. 2005. "An Economic Basis for Open Standards". FLOSSPOLS project, European Commission.
Policy Department C: Citizens' Rights and Constitutional Affairs
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2.3
Procurement principles and sustainability
Open standards and open source software, as separately outlined above, are both relevant
to the procurement principles described previously. When based on open standards, open
source software supports the sustainability of government ICT processes and systems
through:
transparency and security: open source software is available along with its
source code which can be studied and modified. This can ensure the security of
the software, as its processes are examined in detail under widespread scrutiny
and improved. Open source software also allows appropriate stakeholders to
understand and monitor the functioning of government processes that are
implemented in software - for instance, to ensure that voting systems are
calculating results correctly.
interoperability: whether implemented in open source or proprietary software,
open standards ensure interoperability, the ability of systems from different
vendors to function fully with each other without technical or legal obstacles.
Open source software, in particular, provides additional support for
interoperability, as its processes can be studied and adapted to work with other
systems.
independence: transparency and interoperability allow current and future
vendors to work with, adapt and maintain the software, eliminating the
dependence of purchasers or third party support and service providers on the
vendors of the original version of the software.
flexibility: open source software allows systems to be adapted and extended as
user needs evolve. It does this without requiring that the user go back to the
original vendor - new suppliers can be selected on a competitive basis.
These four properties ensure the sustainability of open source software. Sustainability
implies lower costs over the longer term but, more importantly, reduces the users' reliance
on the original vendors of the software. This means that selection criteria that have
traditionally been used to ensure the sustainability of software by ensuring the
sustainability of the original vendors (e.g. capital, turnover or size requirements) may not
be as important and can be reduced for the procurement of open source software. If, for
instance, the original vendor goes bankrupt, users can lose all their investments in that
vendor's proprietary software. However, if the software is open source, the user can find
another vendor to support the software with no legal or technical obstacles.
2.4
“Off-the-shelf” or custom software?
In the public sector, a lot of software is custom-built, or developed in-house. This is partly
due to the fairly specific application areas typical to the public sector – for instance, police
records management is not a domain with a large private-sector market. According to
another EC study
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, about 10% of national public authorities in the EU had or were in a
position to release software they owned (custom-built or developed in-house) as open
source.
Since such software is generally controlled by the public sector organisation using it, the
issues related to open source and open standards are easier to address.
For off-the-shelf software, the vendor, not the user, controls the software. Thus, proper
procurement procedures are particularly important in the case of off-the-shelf software, in
order to help the procuring public agency exercise its control and choice.
92 European Commission DG Information Society and Media, 2008, Study on the effect on the development of the
information society of European public bodies making their own software available as open source. Available online
at http://www.publicsectoross.info
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