Workshop: Legal aspects of free
and open source software
____________________________________________________________________________________________
85
administration can freely select a Free Software which is inherently « freely accessible, free
of charge and modifiable by any service provider » and procure customisation, installation
and maintenance services in relation to that particular software.
3.6.2 Results
Benjamin Jean (free software specialist and advocate)
167
welcomes and appreciates the
relevance and clear-sightedness of the circular, but regrets the absence of the local
administrations, which could have also been involved in the sharing and mutualising
process.
The circular has been welcomed by the APRIL (French association for the promotion and
defence of free software) as good news, but the association underlines that this decision
from the French State is just a first step which needs to be further implemented. The
association notices that the document provides only high level guidelines that must be
further detailed and implemented by taking
many concrete measures
168
.
3.6.3 Features
ACTION:
Policy (ministerial circular)
DECISION LEVEL: National
ACTION LEVEL:
National
OBJECTIVES:
Levelling the playing field
Fostering the use and mutualisation of free software
MEASURES TAKEN: Selection of a set of credible free software alternatives
Creation of expert networks
Free software monitoring
Contributing to Free Software development
Developing a culture of FOSS use
LICENSING:
Reference to “free software”
EFFECTIVENESS:
It is too early to assess the concrete results of the initiative,
which consist of high level guidelines.
The initiative requires an important implementation work that
remains to be determined and carried out.
4. OBSERVATIONS
What first strikes the observer when comparing the different cases
described in this briefing
paper is the diversity of the initiatives. Whereas the logic lying behind them is usually
evolving around the same concerns and objectives, the adopted strategies and concrete
actions are very diverse in terms of scope, scale, means and ambitions. Furthermore, they
are not at the same stage of development and implementation. This, in addition to the
cultural and state structure differences, renders any meaningful comparison difficult.
All the initiatives aim at improving the public procurement practices and stem from the
observation that even though FOSS presents inherent characteristics that correspond to
good ICT governance principles, the option is not considered
enough when choices are
167
B.
J
EAN
, « Synthèse sur la publication par le Premier Ministre Jean-Marc Ayrault de la circulaire du 19
septembre 2012 présentant des orientations et des recommandations sur le bon usage des logiciels libres dans
l'administration française
», 27 septembre 2012,
available at
http://blog.vvlibri.org/index.php?post/2012/09/27/Synth%C3%A8se-sur-la-publication-par-le-Premier-Ministre-
Jean-Marc-Ayrault-de-la-circulaire-du-19-septembre-2012-pr%C3%A9sentant-des-orientations-et-des-
recommandations-sur-le-bon-usage-des-logiciels-libres-dans-l-administration-fran%C3%A7aise
.
168
« Analyse détaillée de la circulaire Ayrault sur le bon usage des logiciels libres dans les administrations »,
APRIL, 8 novembre 2012, available at
http://www.april.org/analyse-detaillee-circulaire-ayrault-sur-le-bon-usage-
des-logiciels-libres-dans-les-administrations
.
Policy Department C: Citizens' Rights and Constitutional Affairs
____________________________________________________________________________________________
86
made. Raising awareness seems to be the first (explicit or implicit) objective, and effect, in
all cases.
The guidelines attached to the French Ayrault Circular are particularly interesting on that
aspect as they stress that one of the main causes of the lack of awareness of FOSS is the
fact that, contrary to proprietary software, FOSS is usually not the subject of ongoing
marketing and promotion practices. Therefore, FOSS and their communities should indeed
be actively monitored by the administrations’ procurement officers,
and preferably by
dedicated open source experts. The importance of the active participation of the
administration IT staff in the community is also illustrated by the Belgian IMIO project,
which has been created on the top of a community of developers (CommunesPlone)
composed to a large extent of IT workers employed by the municipalities involved or by the
SME’s providing the services to the latter and to the public company. IMIO is therefore
entirely integrated in the community and is one of its main actors.
Part of IMIO’s success is also due to its bottom-up organisation, which embraces the
“traditional” open source ways
169
. It has been created by the municipalities for the
municipalities, on the basis of a general observation: on the one hand, each one of them
disposes of very limited budgets and resources to procure or
develop specific management
tools, CMS, websites, e-Gov platforms; on the other hand, they all share the same needs.
The municipalities realised that pooling resources to develop a pool of common software
was therefore the natural way to address the issue.
This approach is very different from the NOIV program, the French Circular, the UK
strategy or the legislative approaches, which are typical of top down governance. In such
type
of initiatives, any factor of resistance to change must be carefully analysed and
integrated in the strategy. A good strategy should include an awareness phase and,
according to Paapst, a subsequent persuasion phase with four dimensions: a legal
dimension, a technical dimension, a financial dimension and a subjective
“knowledge/experience” dimension. Within this subsequent phase different elements
influence the degree of willingness to adopt and use a new strategic IT policy in any of the
four identified dimensions. According to Paapst, a reason why the NOIV has not been as
successful as expected is that “
for instance the mere use of the legal instrument (e.g. the
European procurement guidelines) is not enough to change behaviour and to
counterbalance negative influences coming from within the technical dimension and the
experience/knowledge dimension”
170
. By welcoming the Italian initiative with caution, Piana
& Aliprandi confirm Paapst’s theory: purely financial reasons are equally not enough to
ensure a successful migration to FOSS
171
.
Once a public administration is aware and convinced that FOSS is good for its ICT, it can
draw many teachings from the experiences analysed in this briefing paper.
Even before considering a call for tender, there is a consensus amongst the authorities
involved that downloading FOSS free of any charge or compulsory fee can be a valid means
of acquiring software without the requirement of a competitive bidding
172
. Once the FOSS is
selected
and downloaded, paid services and support for such software can be acquired via
the traditional public contract process. Such method has been validated by the French
Council of State.
In the framework of a call for tenders, the Italian Constitutional Court teaches that the
concept of FOSS is independent of any given technology, brand or product but refers to a
contractual regime that can be preferred without damaging competition. References to the
concept of free and open source software are therefore always legal (contrary to the use of
169
E.
R
AYMOND
’s “The Cathedral and the Bazaar” describes the bottom-up software design approach
of the Linux
community. It is available at
http://www.catb.org/esr/writings/homesteading/
.
170
M. P
AAPST
,
Barrières en doorwerking : Een onderzoek naar de invloed van het open source en open standaarden
beleid op de Nederlandse aanbestedingspraktijk, PhD thesis defended on 10 January 2013, available at
http://irs.ub.rug.nl/ppn/353037710
.
171
Idem.
172
This is also confirmed in the European Commission’s IDABC programme’s “Guideline on public procurement of
Open Source Software” of March 2010, available at
http://joinup.ec.europa.eu/sites/default/files/OSS-
procurement-guideline%20-final.pdf
.