Workshop: Legal aspects of free
and open source software
____________________________________________________________________________________________
79
results of a survey aiming at assessing the use of FOSS in the Spanish Government in
2010
140
. The findings of the survey can be summarised as follows:
The majority of the organisms of the national administration (nine out of ten) are
using some FOSS. From a quantitative point of view, 40% of server technologies
and 15% of desktop technologies are FOSS.
Outstandingly, 68% of the surveyed organisms acquired FOSS by simply
downloading it from a repository or a forge, and 46% of them have developed
software based on FOSS (server software).
One third of the surveyed organisms have procured FOSS (14,7% having required
FOSS solutions if possible, and 21,7 % valorising the fact that the proposed solution
be FOSS based). However 38,5% have confirmed that they do not adopt any
specification in their tenders on that respect.
27% of the surveyed organisms confirm having reused
FOSS solutions developed by
other public administrations.
However, the surveyed administrations also let know that their IT departments needed
more personnel specialised in FOSS and that more training was needed. 86% of them
deemed necessary to improve the knowledge in FOSS.
This legislative initiative has been confirmed and further extended at national level by the
Act 18/2011 regulating the Use of ICT in the Administration of Justice
141
, which restates
142
the rules regarding the reuse of software via FOSS licensing as adopted in the eGov law
and the Royal Decree.
This general legal framework has also inspired the administrations of the autonomous
communities. Indeed, the Basque Country has, in turn, adopted a decree to establish a
general principle of openness which is not limited to the eGov
applications but applies to
any software owned by the public administration
143
.
3.3.3 Features
ACTION:
Legislation
DECISION LEVEL: National
ACTION LEVEL:
Any level
OBJECTIVES:
To foster reuse of administration software by promoting and
explicitly authorising the application of FOSS licences
MEASURES TAKEN: Legal authorisation to redistribute software free of charge
under a FOSS licence
Creation of a technology transfer centre listing and hosting the
reusable software
Legal obligation to consider the existing reusable software
when procuring software.
LICENSING:
The EUPL is the “default” licence, but other copyleft licences
are
valid alternatives
140
El Software Libre en los Organismos Públicos de Ámbito Estatal, Cenatic, December 2011, available at
http://www.cenatic.es/publicaciones/onsfa?download=117%3Ael-software-libre-en-los-organismos-publicos-de-
ambito-estatal
.
141
Ley 18/2011, de 5 de julio, reguladora del uso de las tecnologías de la información y la comunicación en la
Administración de Justicia, available at
http://www.boe.es/buscar/doc.php?id=BOE-A-2011-11605
.
142
Article 55 et seq.
143
Decreto 159/2012, de 24 de julio, por el que se regula la apertura y reutilización de las aplicaciones
informáticas de la administración pública de la Comunidad Autónoma de Euskadi, available at
http://www.euskadi.net/cgi-
bin_k54/ver_c?CMD=VERDOC&BASE=B03A&DOCN=000111019&CONF=/config/k54/bopv_c.cnf
Policy Department C: Citizens' Rights and Constitutional Affairs
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80
EFFECTIVENESS: Public
Administrations seem globally informed on FOSS.
Administration software has been reused.
Positive discrimination has sometimes been adopted.
There is no clear information about whether the playing field is
actively levelled.
3.4.
United Kingdom: Government ICT Strategy
3.4.1
General
presentation
In March 2011, the United Kingdom’s Cabinet Office issued a document officialising the
adoption of a new Government ICT Strategy
144
. Cutting costs serves as a leitmotiv
145
and
sharing software as a means to an end. The document states that its global aim is
openness towards people, the organisations that use its services, and towards any provider
regardless of size. The strategy stresses the need to let SME’s access the market, to
recentre in-house capacities and to avoid oversized,
and thus very costly, projects
146
. The
government deems it also important to streamline and centralise the procurement
practices. To do so, it has planned to develop a new operating model for departments and a
new procurement system.
The Government ICT Strategy also aims at fostering the reuse and adaptation of systems
which are available ‘off the shelf’ or have already been procured by another part of the
government. Paragraph 15 of the Strategy explicitly states that the different departments
will reuse and share ICT solutions and contracts, rather than purchasing new or bespoke
solutions and that the government will not commission new
solutions where something
similar already exists. To identify reusable applications, equipment and resources, the
government builds up a cross-government asset register and also plans to create an online
Applications Store.
In the same line of reasoning, the government has decided to impose compulsory open
standards and to create a level playing field for open source software. Paragraph 16 of the
Strategy provides that “
where appropriate, government will procure open source solutions.
When used in conjunction with compulsory open standards, open source presents
significant opportunities for the design and delivery of interoperable solutions”.
To create the level playing field for the use
of innovative ICT solutions, the government has
published a toolkit for procurers on best practices to evaluate the use of open source
solutions
147
, and which encompasses, amongst others, a general document explaining what
open source is
148
, an open source applications reference list detailing applications that can
be contemplated as options for the administration
149
and guidelines on FOSS
procurement
150
. The latter only provide high level advice on how
to ensure that open
source software is fairly considered when procuring an ICT solution. They underline the
inherent flexibility of Open Source as regards several requirements that should always be
considered when procuring software, such as the scalability of licence, the transferability of
software or the compliance with open standards.
The guidelines also explain that
“where the software is free to use ‘gratis’ software and all
associated products are free for the whole of life use then there is no requirement to tender
the requirement for the licenses”. However, “
(a) purchase of support and maintenance
procured separately from licenses will need to be tendered where it is expected that the
cost of support meets the EU thresholds and in accordance with any standing financial
instructions”.
144
Available at
http://www.cabinetoffice.gov.uk/content/government-ict-strategy
145
This is confirmed by Linda Humphries on the Government’s blog, “Are open standards a closed barrier?”, 12
avril 2012, available at
http://digital.cabinetoffice.gov.uk/2012/04/12/are-open-standards-a-closed-barrier/
146
The Government sets a presumption against government ICT projects valued at over £100 million.
147
Available at
https://www.gov.uk/government/publications/open-source-procurement-toolkit
.
148
“All about open source: an introduction to Open Source software for Government IT”, version 2, April 2012,
available at the same address.
149
“Open Source Software Options for Government”, version 2, April 2012, available at the same address.
150
“ICT Advice Note - Procurement of Open Source”, October 2011, available at the same address.