Workshop: Legal aspects of free
and open source software
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69
Aims
This briefing paper aims at illustrating how Member States’ public administrations
(hereinafter 'PAs') at different administrative levels have implemented government
strategies and legislative texts to raise awareness, to level the playing field or even to
establish positive discrimination for such permissively licensed software in procurement
contexts.
It also aims at comparing these initiatives so as to identify some lessons that can be drawn
from the different experiences.
KEY FINDINGS
The different initiatives analysed are not at the same stage of development and are
very diverse in terms of scope, scale, means and ambitions, which renders
precise
comparison difficult.
All the policy makers behind the analysed strategies were aware of the potential and
advantages of FOSS. Software reuse and costs reduction seem however to be the
two main incentives that generally triggered the initiatives.
The degree of success of the different initiatives is very variable.
The current public procurement regulatory framework as such does not seem to
constitute a hindrance to the adoption of FOSS by administrations. It provides ways
to develop practices aimed at levelling the playing field or granting preference to the
procurement of FOSS.
Contracting authorities seem however to show different degrees of resistance, which
is motivated by multiple factors that tend to be overlooked.
1. BACKGROUND
Public services have become increasingly and irreversibly dependent upon information and
communication technologies. Many if not all administrations, at any level, have more or
less incorporated ICT into their operations. Whereas some
of them mainly use simple
mainstream systems such as word processors, spreadsheets applications, emails, Internet
browsers, etc., other public services use complex – and usually highly if not totally
customised – database systems and information systems. Software represents a
qualitatively and quantitatively essential part of such systems. Accordingly, software
procurement has become a key element in the general administration governance, which
has a direct influence on the quality and effectiveness of its services.
The law regulates public tendering in order to ensure that economic operators are equally
treated and in order to safeguard the financial, economical and operational interests of the
contracting authority, which can be associated
with the public interest
104
. Directive
2004/18/EC on the coordination of procedures for the award of public works contracts,
public supply contracts and public service contracts
105
provides only for a general legal
framework establishing global principles such as transparency and non-discrimination.
National and local lawmakers and public administrations therefore benefit from a significant
leeway and may take important decisions as regards public ICT and software procurement
policies.
104
D.
D
E
R
OY
, “L’irruption du logiciel libre dans le secteur public. A la découverte d’une actualité fort ancienne”, in
Les logiciels libres face au droit, Bruxelles, Bruylant, 2005, p.200.
105
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of
procedures for the award of public works contracts, public supply contracts
and public service contracts,
OJ L 134,
30 April 2004, pp. 114–240.
Policy Department C: Citizens' Rights and Constitutional Affairs
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70
Procurement practices have often been criticised for discriminating against FOSS or
excluding it from competition. Such exclusion does not always happen voluntarily, but often
results from misunderstanding or ignorance of the FOSS licences mechanisms and the
associated business models. For
instance, besides the all too common requirements of, or
references to, proprietary trademarks or technologies, award criteria requiring the bidder to
be the owner of the copyrights or referring to the “purchase” of software licences are
equally detrimental
to FOSS-based bids
106
.
Understanding FOSS and the business models which have been developed around it is the
first prerequisite to improve procurement practices. Traditional “proprietary software”
107
business models are usually based on the exclusive exploitation of intellectual property and
the “sale” of licences limiting the scale and extent of software usage. FOSS is, on the
contrary, based upon a permissive licensing system coupled with an unrestricted access to
the source code, which enables the licensee to use, reproduce, modify and re-distribute the
software (and its modifications) at will
108
. In addition to being very permissive, FOSS
licences are royalty-free: licensors are not remunerated in exchange of the given
authorisation.
FOSS licensing uses intellectual property (normally copyright) in a versatile way, not to
monopolise technology and reap royalties, but to foster
creation on an open and
collaborative basis. This very peculiar licensing scheme is sometimes described as a way to
reconstruct virtual commons
109
, namely open to all and non-exclusive resources. Such
peculiar licensing scheme has challenged the traditional business logic and has given birth
to alternative models, which are generally more focussed on the provision of services
(around the shared resources) than the selling of products (created on the basis of
monopolistic rights on the resource).
Like the European Union
110
, many Member States and administrations at national, regional
or local level are receptive towards the potential and advantages of FOSS, which fit the
general public procurement principles of transparency, flexibility, independence,
interoperability, sustainability and cost-effectiveness
111
. Accordingly,
some national and
local governments have taken very diverse measures in order to promote the use of FOSS
in the administrations and to better adapt their procurement policies so as to take into
account FOSS specificities and to open the competition to FOSS-oriented bids.
The Legal Affairs Committee of the European Parliament has decided to hold a workshop on
the legal aspects of the use of FOSS, in which the legal aspects of procurement will also be
outlined. In this context, the Committee requested an
ad hoc briefing paper identifying and
summarising relevant national experiences at different levels (national, regional or local) to
illustrate the current trends regarding the procurement and use of FOSS by public
administrations within the EU.
106
“
For instance, a call for tenders for the purchase of software licences "discriminates" against businesses that do
not offer software as a product paid for at the time of purchase through licensing”. IDABC, Guideline on public
procurement of Open Source Software, available at
https://joinup.ec.europa.eu/sites/default/files/studies/OSS-
procurement-guideline-public-final-June2010-EUPL-FINAL.pdf
.
107
It is common to use the term “proprietary” software to refer to software that is not licensed under a FOSS
licence but governed by restrictive terms, and the use of which requires the payment of royalties.
108
See “The Free Software Definition”, available on the FSF official website,
http://www.gnu.org/philosophy/free-
sw.html
and “The Open Source Definition”, available on the OSI official website,
http://opensource.org/docs/osd
.
109
P
H
.
L
AURENT
, “Free and Open Source Software Licensing: A reference for the reconstruction of “virtual
commons?” to be published in the proceedings of the Conference for the 30
th
Anniversary of the CRID, which took
place in Namur from the 20
th
to the 22
th
of January 2010, available at
http://www.crid.be/pdf/public/7133.pdf
.
110
In recent years, the European Union has paid increasing attention to the potential
of free and open source
software. Already in its 2002 Communication "eEurope 2005: An information society for all," [COM(2002) 263
final, 28.5.2002], the European Commission stated that it intended to promote the use of open standards and of
open source software. As from 2006, the IDABC and ISA programmes of the European Commission are actively
promoting the use of FOSS. The European Commission even created and stewards the OSI certified European
Union Public Licence (EUPL). Interest in free and open source software has again increased after the European
Commission published, in September 2012, the Communication "Unleashing the potential of cloud computing in
Europe"[COM(2012) 529 final, 27.9.2012].
111
IDABC, “Guideline on public procurement of Open Source Software”, March 2010 (revised June 2010), available
at
https://joinup.ec.europa.eu/sites/default/files/studies/OSS-procurement-guideline-public-final-June2010-EUPL-
FINAL.pdf
.