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@@ -8,7 +8,7 @@ = Preface = -The study "''Ensuring utmost transparency - Free Software and Open Standards under the Rules of Procedure of the European Parliament''" has been produced at the request of the Greens/EFA Group in the European Parliament by Carlo Piana<ref name="Carlo Piana">'''Carlo Piana''' is an Italian qualified attorney based in Milano, founder of [http://array.eu Array] and specializing in Information Technology Law. He also serves in the Editorial Committee of the Free and Open Source Software Law Review [http://www.ifosslr.org Ifosslr] {{cite web|title=Carlo Piana|url=http://en.wikipedia.org/wiki/Carlo_Piana|accessdate=14 October 2014}}</ref> and Ulf Öberg<ref name="Ulf Öberg">'''Ulf Öberg''' is Founder and Managing Partner of the law firm Öberg & Associés. He is specialised in EU and Competition law and has extensive trial experience before the EU Courts, Swedish courts and European Court of Human Rights. {{cite web|title=Ulf Öberg|url=http://www.obergassocies.eu/en/about-us/ulf-oberg|accessdate=14 October 2014}}</ref> under the supervision of Professor Douwe Korff<ref name="Douwe Korff">'''Professor Douwe Korff''' is an Associate of the [http://www.oxfordmartin.ox.ac.uk/people/578 Oxford Martin School] of the University of Oxford and a member of the cybersecurity working group of its Global Cybersecurity Capacity Centre; a [http://isp.yale.edu/douwe-korff Visiting Fellow] at Yale University (in its Information Society Project); and a [https://cihr.eu/people/ Fellow] of the Centre for Internet & Human Rights of the European University Viadrina in Berlin.</ref>. +The study "''Ensuring utmost transparency -- Free Software and Open Standards under the Rules of Procedure of the European Parliament''" has been produced at the request of the Greens/EFA Group in the European Parliament by Carlo Piana<ref name="Carlo Piana">'''Carlo Piana''' is an Italian qualified attorney based in Milano, founder of [http://array.eu Array] and specializing in Information Technology Law. He also serves in the Editorial Committee of the Free and Open Source Software Law Review [http://www.ifosslr.org Ifosslr] {{cite web|title=Carlo Piana|url=http://en.wikipedia.org/wiki/Carlo_Piana|accessdate=14 October 2014}}</ref> and Ulf Öberg<ref name="Ulf Öberg">'''Ulf Öberg''' is Founder and Managing Partner of the law firm Öberg & Associés. He is specialised in EU and Competition law and has extensive trial experience before the EU Courts, Swedish courts and European Court of Human Rights. {{cite web|title=Ulf Öberg|url=http://www.obergassocies.eu/en/about-us/ulf-oberg|accessdate=14 October 2014}}</ref> under the supervision of Professor Douwe Korff<ref name="Douwe Korff">'''Professor Douwe Korff''' is an Associate of the [http://www.oxfordmartin.ox.ac.uk/people/578 Oxford Martin School] of the University of Oxford and a member of the cybersecurity working group of its Global Cybersecurity Capacity Centre; a [http://isp.yale.edu/douwe-korff Visiting Fellow] at Yale University (in its Information Society Project); and a [https://cihr.eu/people/ Fellow] of the Centre for Internet & Human Rights of the European University Viadrina in Berlin.</ref>. The study has been open for public review on euwiki.org from 15 October till 15 November 2014. Online support during the review period was provided by Jonatan Walck<ref name="Jonatan Walck">'''Jonatan Walck''' is a computer and computer networks specialist working with [https://web.archive.org/web/20141214070422/http://www.netnod.se/new-staff-netnod/ system administration and development of internet-connected services, hardware-software integration and electronics]. He is a founding member the Swedish non-profit [https://web.archive.org/web/20090923123947/http://juliagruppen.se/lang/en/om-juliagruppen/vi-ar-juliagruppen/ Juliagruppen] and a long term [https://web.archive.org/web/20130312211020/https://fscons.org/2012/people/jonatan-walck/ advocate for a free and open internet].</ref>. @@ -32,7 +32,7 @@ __TOC__ = Foreword = -This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation - or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament's duty to ensure "utmost transparency" clearly demands the latter rather than just the former. +This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation -- or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament's duty to ensure "utmost transparency" clearly demands the latter rather than just the former. In order to elucidate the relevant requirements, the authors provide excellent overviews of a large number of widely diverging and complex issues relevant to the topic: human rights law, EU law ranging from the Charter of Fundamental Rights to EC directives on public sector information and Commission decisions on data re-use, copyright, patents and protection of databases, principles of good governance, transparency standards relating to the environment (Aarhus), the G8 Open Data Charter and others on the mainly legal and governance standards side; the European Interoperability Framework (versions 1 and 2), open standards (as variously formally defined) and "semi-formal" RFCs, FOSS and email system requirements on the more practical, technical side. They have looked at relevant rules and practices in a range of countries including India, Sweden and the UK. @@ -44,7 +44,7 @@ Crucially, the authors have managed to draw on all these sources to indicate cle = Scope and method of analysis= -This study arises from a proposal by the Greens/EFA, backed by two Plenary decisions, that the European Parliament investigates its own transparency obligations under its Rules of Procedure with regard to Free Software and Open Standards. <ref>Quoting from the public mail archive of the Greens/EFA Internet Core Group: "The Greens/EFA group in the European Parliament has commissioned a study into the implications of Rule 103 of the European Parliament's Rules of Procedure for the Parliament's decisions, policies, procedures, etc., with regard to Free Software and Open Standards [...] The study will assess whether, and if so how and to what extent, Rule 103 can inform the EP's ICT decisions, policies, procedures, etc. (including procurement decisions) with regard to Free Software and Open Standards.", available at http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html</ref> +This study arises from a proposal by the Greens/EFA, backed by two Plenary decisions, that the European Parliament investigates its own transparency obligations under its Rules of Procedure with regard to Free Software and Open Standards.<ref>Quoting from the public mail archive of the Greens/EFA Internet Core Group: "The Greens/EFA group in the European Parliament has commissioned a study into the implications of Rule 103 of the European Parliament's Rules of Procedure for the Parliament's decisions, policies, procedures, etc., with regard to Free Software and Open Standards [...] The study will assess whether, and if so how and to what extent, Rule 103 can inform the EP's ICT decisions, policies, procedures, etc. (including procurement decisions) with regard to Free Software and Open Standards.", available at http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html</ref> The scope is therefore to verify whether, in general or in single areas, the principle of openness and the right of access to information mandates, and if so to what extent, the use of Free Software and Open Standards, or what kind of preference towards it, if any. @@ -96,9 +96,9 @@ Article 1(2) and Article 10(3) of the Treaty establishing the European Union (TE In this respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing in or having its registered office in a Member State, is to have a right of access to documents of the Union's institutions, bodies, offices, and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3), the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. In accordance with the third subparagraph of Article 15(3) TFEU, each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU. -It should be noted at the outset that the General Court has held that Article 1, para. 2 EU and Article 255 EC did not have direct effect, and could therefore not form the basis of a request for disclosure of a document of an institution. The first provision was not regarded as "clear"<ref>Within the meaning of the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1</ref>, and the second was not considered to lay down an unconditional obligation, since its implementation was held to be dependent on the adoption of subsequent measures. <ref>Case T-191/99 Petrie and Others v Commission [2001] ECR II-3677, paragraph 34-38 and Joined Cases T-3/00 and T-337/04 Pitsiorlas v Council and ECB [2007] ECR II-4779</ref> +It should be noted at the outset that the General Court has held that Article 1, para. 2 EU and Article 255 EC did not have direct effect, and could therefore not form the basis of a request for disclosure of a document of an institution. The first provision was not regarded as "clear"<ref>Within the meaning of the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1</ref>, and the second was not considered to lay down an unconditional obligation, since its implementation was held to be dependent on the adoption of subsequent measures.<ref>Case T-191/99 Petrie and Others v Commission [2001] ECR II-3677, paragraph 34-38 and Joined Cases T-3/00 and T-337/04 Pitsiorlas v Council and ECB [2007] ECR II-4779</ref> -In a different strand of its case-law, the General Court has referred to the "principle of the right to information" <ref>Case T-14/98 Hautala v Council [1999] ECR II-2489, paragraph 87</ref>, and to the "principle of transparency" <ref> Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 52</ref>, in support of a finding that the previous internal rules of access to documents of the institutions must be interpreted in the light of the "principle of the right to information" and the principle of proportionality. The issue has obviously divided the General Court, which has also stated: +In a different strand of its case-law, the General Court has referred to the "principle of the right to information" <ref>Case T-14/98 Hautala v Council [1999] ECR II-2489, paragraph 87</ref>, and to the "principle of transparency" <ref>Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 52</ref>, in support of a finding that the previous internal rules of access to documents of the institutions must be interpreted in the light of the "principle of the right to information" and the principle of proportionality. The issue has obviously divided the General Court, which has also stated: <blockquote>For the purpose of applying Article 4 of Regulation EC No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the concept of a document must be distinguished from that of information. The public's right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual.<ref>Case T 264/04 WWF European Policy Programme v Council [2007] ECR II-911 at para 76.</ref></blockquote> @@ -106,9 +106,9 @@ To date, no clear guidance on this issue has been provided by the Court. In Coun Based on this lack of clarity in the case-law of the EU Courts, in Pitsiorlas v Council and ECB, the ECB contested the very existence in EU law of a fundamental legal principle which provides for a general right of access to its documents and to those of the EU institutions. It argued that although arguments based on such a principle have been raised on numerous occasions before the EU judicature, none of the EU Courts has considered it appropriate to examine them. -In its judgement, the General Court held that "even supposing that the right of access to the documents held by the Community public authorities, including the ECB, may be regarded as a fundamental right protected by the Community legal order as a general principle of law", the plea of illegality in respect of Article 23.3 of the ECB Rules of Procedure, based on the alleged infringement of such a principle, could not be upheld. The General Court pointed out that fundamental rights cannot be understood as "unfettered prerogatives" and that it is "legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched" <ref>Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14</ref>. The General Court held that, as regards the right of access to documents, reasons related to the protection of the public interest or a private interest may legitimately restrict that right.<ref>Pitsiorlas v Council and ECB, paragraph 221-223</ref> +In its judgement, the General Court held that "even supposing that the right of access to the documents held by the Community public authorities, including the ECB, may be regarded as a fundamental right protected by the Community legal order as a general principle of law", the plea of illegality in respect of Article 23.3 of the ECB Rules of Procedure, based on the alleged infringement of such a principle, could not be upheld. The General Court pointed out that fundamental rights cannot be understood as "unfettered prerogatives" and that it is "legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched" <ref>Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14</ref>. The General Court held that, as regards the right of access to documents, reasons related to the protection of the public interest or a private interest may legitimately restrict that right.<ref>Pitsiorlas v Council and ECB, paragraph 221-223</ref> -Be that as it may. As Advocate General Poiares Maduro has correctly pointed out, the fact remains that henceforth the existence of the right of access to documents of the institutions is no longer based on internal measures adopted by the institutions, with which they are bound to comply, or even on Regulation 1049/2001, but on a provision of constitutional import.<ref>Sweden v Commission, C-64/05 P, EU:C:2007:802</ref> The Court has in this regard clarified that the "principle of openness" stated in a general manner in the second paragraph of Article 1 TEU is "crystallised" by Regulation 1049/2001.<ref >Commission v Agrofert Holding EU:C:2012:394, paragraph 88 </ref> An alleged infringement of the second paragraph of Article 1 TEU is therefore in the Court's view not distinct from a plea alleging a wrongful application of the exceptions referred to in Regulation No 1049/2001. +Be that as it may. As Advocate General Poiares Maduro has correctly pointed out, the fact remains that henceforth the existence of the right of access to documents of the institutions is no longer based on internal measures adopted by the institutions, with which they are bound to comply, or even on Regulation 1049/2001, but on a provision of constitutional import.<ref>Sweden v Commission, C-64/05 P, EU:C:2007:802</ref> The Court has in this regard clarified that the "principle of openness" stated in a general manner in the second paragraph of Article 1 TEU is "crystallised" by Regulation 1049/2001.<ref>Commission v Agrofert Holding EU:C:2012:394, paragraph 88</ref> An alleged infringement of the second paragraph of Article 1 TEU is therefore in the Court's view not distinct from a plea alleging a wrongful application of the exceptions referred to in Regulation No 1049/2001. The existence of a "principle of openness" is confirmed by Art. 15 of the Treaty on the Functioning of the European Union, which states: @@ -140,7 +140,7 @@ Moreover, to give effect to the right of access to information, States Parties s <blockquote>States Parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.</blockquote> -The principle of openness and the right of access to information are directed - among other things - at ensuring that decisions are taken as openly as possible and closely as possible to the citizens, in other words, it is a basic democratic tenet, where citizens must see what happens within the institutions (which is one of the means through which accountability of the institutions and their agents is ensured) ''and'' the institutions have an obligation to at least listen to what citizens have to say (in other words, participation and representation of interests). <ref >Interesting a reading is the work {{cite web | title = Transparency in Three Dimensions | url = http://illinoislawreview.org/wp-content/ilr-content/articles/2011/4/Schauer.pdf | year = 2011 | author = Schauer, Frederick | journal = University of Illinois Law Review | pages = 1339-1358 | volume = 2011 | issue = 4 | accessdate = 2014-08-08}} although in the US constitutional environment</ref>. +The principle of openness and the right of access to information are directed -- among other things -- at ensuring that decisions are taken as openly as possible and closely as possible to the citizens, in other words, it is a basic democratic tenet, where citizens must see what happens within the institutions (which is one of the means through which accountability of the institutions and their agents is ensured) ''and'' the institutions have an obligation to at least listen to what citizens have to say (in other words, participation and representation of interests).<ref >Interesting a reading is the work {{cite web | title = Transparency in Three Dimensions | url = http://illinoislawreview.org/wp-content/ilr-content/articles/2011/4/Schauer.pdf | year = 2011 | author = Schauer, Frederick | journal = University of Illinois Law Review | pages = 1339-1358 | volume = 2011 | issue = 4 | accessdate = 2014-08-08}} although in the US constitutional environment</ref>. == Legislative Openness == @@ -170,15 +170,15 @@ The Court has confirmed that the considerations of legislative openness are clea The theoretical underpinnings of the Principle of Openness and of legislative openness has thus acquired a solid foundation in the Treaties and in the case-law of the court. However, due to the eternal tide wave and purported conflict between Openness and Efficiency, Parliament has in practice struggled to live up to the Principle of Openness by resorting to informal decision-making procedures. As Nikoleta Yordanova has correctly noted: -<blockquote>Traditionally, the parliamentary committees have offered important venues for political involvement of extra-parliamentary actors due to the openness and transparency of their meetings. In the past fifteen years, however, the EP has been resorting ever more often to informal decision-making, whereby the parliamentary decisions are not reached internally following deliberations and debate in committee and plenary but in secluded trilogue meetings of limited number of representatives of the three EU legislative institutions - the EP, the Council of Ministers and the European Commission. +<blockquote>Traditionally, the parliamentary committees have offered important venues for political involvement of extra-parliamentary actors due to the openness and transparency of their meetings. In the past fifteen years, however, the EP has been resorting ever more often to informal decision-making, whereby the parliamentary decisions are not reached internally following deliberations and debate in committee and plenary but in secluded trilogue meetings of limited number of representatives of the three EU legislative institutions -- the EP, the Council of Ministers and the European Commission. [...] -The implications of the switch to an informal mode of legislating for representation in the EP are twofold - decreased input and, potentially also, output legitimacy. Specifically, the decrease in committee influence has curtailed the channels of representation of interest groups to affect decision-making, depriving them of an effective tool to monitor and shape the legislative process and outcomes by raising timely demands. A possible implication of this is diminished receptiveness of legislators to constituents' interests. Moreover, the lack of transparency of the secluded inter-institutional meetings has limited the ability of constituents to monitor their representatives' policy bargaining, positions and the concessions, and, consequently, to evaluate how responsive legislators are to their preferences and demands.<ref>Nikoleta Yordanova, Collusion in Bicameral EU Decision-making Efficiency at the expense of transparency and representation?, Paper prepared for the Conference: New Trends in Political Representation, available at http://nikoletayordanova.net/wp-content/uploads/exeter.pdf</ref></blockquote> +The implications of the switch to an informal mode of legislating for representation in the EP are twofold -- decreased input and, potentially also, output legitimacy. Specifically, the decrease in committee influence has curtailed the channels of representation of interest groups to affect decision-making, depriving them of an effective tool to monitor and shape the legislative process and outcomes by raising timely demands. A possible implication of this is diminished receptiveness of legislators to constituents' interests. Moreover, the lack of transparency of the secluded inter-institutional meetings has limited the ability of constituents to monitor their representatives' policy bargaining, positions and the concessions, and, consequently, to evaluate how responsive legislators are to their preferences and demands.<ref>Nikoleta Yordanova, Collusion in Bicameral EU Decision-making Efficiency at the expense of transparency and representation?, Paper prepared for the Conference: New Trends in Political Representation, available at http://nikoletayordanova.net/wp-content/uploads/exeter.pdf</ref></blockquote> === The Need for Lawmakers to Deliberate in Private === -The European Union, the Member States and 19 other States are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Convention'), which entered into force on 30 October 2001<ref>Aarhus Convention, available at http://www.unece.org/env/pp/treatytext.html</ref>. The Convention is based on three 'pillars' - access to information, public participation, and access to justice. Its preamble includes the following recitals: +The European Union, the Member States and 19 other States are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Convention'), which entered into force on 30 October 2001<ref>Aarhus Convention, available at http://www.unece.org/env/pp/treatytext.html</ref>. The Convention is based on three 'pillars' -- access to information, public participation, and access to justice. Its preamble includes the following recitals: <blockquote>Recognising that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns, @@ -203,9 +203,9 @@ In accordance with Directive 2003/4/EC public authorities must in principle be r In her opinion in Flachglas Torgau (Case C-204/09), Advocate General Sharpstone summarised the dilemma as follows: <blockquote> -The performance of both judicial and legislative functions could be impaired if information of all kinds concerning each and every stage of the process - analysing the relevant issues and data, deriving conclusions from that analysis and formulating a final decision - could be demanded of right at all times by any member of the public. It seems reasonable to assume that considerations of that kind were in the minds of those who initially drafted the first of the instruments concerned and have remained, albeit implicitly, in the minds of those who have participated in the drafting of the subsequent instruments. +The performance of both judicial and legislative functions could be impaired if information of all kinds concerning each and every stage of the process -- analysing the relevant issues and data, deriving conclusions from that analysis and formulating a final decision -- could be demanded of right at all times by any member of the public. It seems reasonable to assume that considerations of that kind were in the minds of those who initially drafted the first of the instruments concerned and have remained, albeit implicitly, in the minds of those who have participated in the drafting of the subsequent instruments. -Yet it is by no means desirable, nor would it appear consistent with the overall thrust of the Convention or the Directive, for legislative or judicial activity to take place in impenetrable secrecy. It is generally considered necessary, in order to ensure the rule of law and democratic government, for both courts of law and legislative assemblies to operate in the presence of the public (or at least of the media as an intermediary) other than in wholly exceptional circumstances - and it is, moreover, generally accepted that such circumstances are more common in the course of judicial than of legislative activity. Other than in wholly exceptional circumstances, therefore, in neither case should decisions be taken on the basis of facts, or for reasons, which are concealed from citizens.<ref>Opinion Flachglas Torgau EU:C:2011:413, paragraphs 53 and 54</ref> +Yet it is by no means desirable, nor would it appear consistent with the overall thrust of the Convention or the Directive, for legislative or judicial activity to take place in impenetrable secrecy. It is generally considered necessary, in order to ensure the rule of law and democratic government, for both courts of law and legislative assemblies to operate in the presence of the public (or at least of the media as an intermediary) other than in wholly exceptional circumstances -- and it is, moreover, generally accepted that such circumstances are more common in the course of judicial than of legislative activity. Other than in wholly exceptional circumstances, therefore, in neither case should decisions be taken on the basis of facts, or for reasons, which are concealed from citizens.<ref>Opinion Flachglas Torgau EU:C:2011:413, paragraphs 53 and 54</ref> </blockquote> == Conduct of Business as "Openly as Possible" or with the "Utmost Transparency" == @@ -235,12 +235,12 @@ A similar construction has been adopted by the Court as regards access to docume <blockquote> However, the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision (see, to that effect, Commission v Éditions Odile Jacob, C-404/10 P, EU:C:2012:393, paragraph 116). -Indeed, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception - among those provided for in Article 4 of Regulation No 1049/2001 - upon which it is relying. In addition, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (Council v Access Info Europe, EU:C:2013:671, paragraph 31 and the case-law cited). +Indeed, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception -- among those provided for in Article 4 of Regulation No 1049/2001 -- upon which it is relying. In addition, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (Council v Access Info Europe, EU:C:2013:671, paragraph 31 and the case-law cited). Moreover, if the institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 to Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (Council v Access Info Europe, EU:C:2013:671, paragraph 32 and the case-law cited).<ref>C-350/12 P, Council v In 't Veld, ECLI:EU:C:2014:2039, paragraphs 51-53</ref> </blockquote> -In the same vein, the European Ombudsman has recognised that the wording and purpose of Articles 11 and 12 of Regulation 1049/2001 do not imply an obligation on Parliament to have, in its public register of documents, a reference to each and every document it holds. However, the Ombudsman found that Parliament should certainly interpret Articles 11 and 12 of Regulation 1049/2001 in a manner which allows the public to obtain "as complete a picture as possible" of how Parliament carries out its core tasks. Documents which relate to these core tasks should therefore, as far as possible, be recorded in Parliament's public register of documents. <ref>Decision of the European Ombudsman closing the inquiry into complaint 262/2012/OV against the European Parliament, available at http://www.ombudsman.europa.eu/cases/decision.faces/en/57773/html.bookmark</ref> +In the same vein, the European Ombudsman has recognised that the wording and purpose of Articles 11 and 12 of Regulation 1049/2001 do not imply an obligation on Parliament to have, in its public register of documents, a reference to each and every document it holds. However, the Ombudsman found that Parliament should certainly interpret Articles 11 and 12 of Regulation 1049/2001 in a manner which allows the public to obtain "as complete a picture as possible" of how Parliament carries out its core tasks. Documents which relate to these core tasks should therefore, as far as possible, be recorded in Parliament's public register of documents.<ref>Decision of the European Ombudsman closing the inquiry into complaint 262/2012/OV against the European Parliament, available at http://www.ombudsman.europa.eu/cases/decision.faces/en/57773/html.bookmark</ref> Against this background, any derogations from the Parliament's Rule 115 that "its activities are conducted with the utmost transparency" must be interpreted strictly, and in the light of the Court's case law on the Principle of Openness and the right of access to documents. @@ -255,15 +255,14 @@ It should be noted that one of the open issues during the negotiations in the Co == Neighbouring concepts == === Re-use of Public Sector Information === -The Directive 2003/98/EC on the re-use of public sector information <ref>Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-utilisation of public sector information (OJ 2003 L 345, p. 90)</ref> as amended by Directive 2013/ -37/EU <ref>Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information (OJ L 175, 27.6.2013 p. 1-8)</ref>, also known as the "PSI Directive" <ref>In the remainder of this section, by using "PSI Directive" we make reference to the amended directive.</ref>, establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States. Article 2(4) of the PSI Directive defines re-use as "the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use". +The Directive 2003/98/EC on the re-use of public sector information<ref>Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-utilisation of public sector information (OJ 2003 L 345, p. 90)</ref> as amended by Directive 2013/37/EU<ref>Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information (OJ L 175, 27.6.2013 p. 1-8)</ref>, also known as the "PSI Directive" <ref>In the remainder of this section, by using "PSI Directive" we make reference to the amended directive.</ref>, establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States. Article 2(4) of the PSI Directive defines re-use as "the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use". Article 3 of the PSI Directive entitled 'General principle' states that Member States shall ensure that, where the re-use of documents held by public sector bodies is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in in the Directive. Recital 9 clarifies that the definition of "document" is not intended to cover computer programmes. To facilitate re-use, public sector bodies should make their own documents available in a format which, as far as possible and appropriate, is not dependent on the use of specific software. Where possible and appropriate, public sector bodies should take into account the possibilities for the re-use of documents by and for people with disabilities. In recital 16, the PSI Directive establishes a link between re-use of public sector information and the "right to knowledge" in the following terms: -<blockquote>Making public all generally available documents held by the public sector - concerning not only the political process but also the legal and administrative process - is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy. This objective is applicable to institutions at every level, be it local, national or international.</blockquote> +<blockquote>Making public all generally available documents held by the public sector -- concerning not only the political process but also the legal and administrative process -- is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy. This objective is applicable to institutions at every level, be it local, national or international.</blockquote> The PSI Directive does not contain an obligation to allow re-use of documents, and the decision whether or not to authorise re-use remains with the Member States or the public sector body concerned. It applies to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use includes further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market. @@ -316,7 +315,7 @@ The EU has furthermore committed to promoting the application of the principles === Re-use of EU Institution documents === -As a rule, the European Commission has allowed re-use of its documents for commercial and non- commercial purposes at no charge since 2006, adopting a first decision of 7 April 2006 on re-use of Commission documents<ref> http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:107:0038:0041:EN:PDF </ref> +As a rule, the European Commission has allowed re-use of its documents for commercial and non- commercial purposes at no charge since 2006, adopting a first decision of 7 April 2006 on re-use of Commission documents<ref>http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:107:0038:0041:EN:PDF</ref> According to the seventh recital of this decision, "An open re-use policy at the Commission will support new economic activity, lead to a wider use and spread of Community information, enhance the image of openness and transparency of the Institutions, and avoid unnecessary administrative burden for users and Commission services". Again, the underlying rationale of the decision was to "support new economic activity", and the ambition in fostering Open Government was reduced "enhance the image of openness and transparency" of the Institutions. @@ -332,9 +331,9 @@ Nevertheless, in creating a private market for Public sector information can hav On 18 March 2010, the Swedish Government presented its Bill (2009/10:175) on Public Administration for Democracy, Participation and Growth. One proposal contained in the Bill was for a law on re-use of documents emanating from Swedish public administration. On 3 June 2010, the Act (2010:566) on the re-use of public administration documents entered into force. The Swedish Agency for Public Management has therefore been assigned to survey the extent to which Swedish central and local government agencies (public sector bodies) have granted exclusive rights or arrangements of the kind referred to in Article 11 of the PSI Directive. -The survey shows that five central public sector bodies state that they have granted exclusive rights for one or more companies to re-use the respective bodies' documents. The questionnaire and interviews implemented by the Agency for Public Management show that several changes have taken place over the past year in terms of phasing out exclusive rights, if any. The survey shows, moreover, that there are unclear points regarding how the notion of 'exclusive rights' (or 'arrangements') should be defined. Based on the responses to the Agency's questionnaire survey, we find wide-ranging perceptions of differences between licensing agreements, on the one hand, and exclusive rights on the other. According to the Agency, there is substantial uncertainty regarding how the term 'exclusive right' should be interpreted. The Swedish Agency for Public Management therefore draws the conclusion that it is imperative to define the terms 'licensing agreement' and 'exclusive right', and also to assist both central and local public sector bodies in their work of developing non-discriminatory licensing agreements.<ref> Statskontoret, A survey of exclusive rights or arrangements (2010:21), available at http://www.statskontoret.se/in-english/publications/2010/a-survey-of-exclusive-rights-or-arrangements/.</ref> +The survey shows that five central public sector bodies state that they have granted exclusive rights for one or more companies to re-use the respective bodies' documents. The questionnaire and interviews implemented by the Agency for Public Management show that several changes have taken place over the past year in terms of phasing out exclusive rights, if any. The survey shows, moreover, that there are unclear points regarding how the notion of 'exclusive rights' (or 'arrangements') should be defined. Based on the responses to the Agency's questionnaire survey, we find wide-ranging perceptions of differences between licensing agreements, on the one hand, and exclusive rights on the other. According to the Agency, there is substantial uncertainty regarding how the term 'exclusive right' should be interpreted. The Swedish Agency for Public Management therefore draws the conclusion that it is imperative to define the terms 'licensing agreement' and 'exclusive right', and also to assist both central and local public sector bodies in their work of developing non-discriminatory licensing agreements.<ref>Statskontoret, A survey of exclusive rights or arrangements (2010:21), available at http://www.statskontoret.se/in-english/publications/2010/a-survey-of-exclusive-rights-or-arrangements/.</ref> -It should be noted that in March 2012, the Swedish Competition Authority closed an investigation with regard to a possible abuse of a dominant position by the Swedish Patent and Registration Office (SPRO) regarding its Trademark register. The Swedish Patent and Registration Office (SPRO) started to offer from 2010 free access to the Trademark register to the downstream end-user market. Customers on the upstream wholesale market were offered more detailed data in different formats (so-called ''"register lifted data"'') for a one-time fee and then a yearly fee. Before 2010, SPRO had offered access to the database to end-users for a fee. The SPRO motivated the decision to eliminate the fee with that free access was within the public task assigned to it by the government. The complaining (incumbent) re-user alleged that it was likely it will be squeezed out of the market by SPRO offering a competing product for free.<ref> Björn Lundqvist and Ylva Forsberg (Stockholm University), Marc de Vries (Citadel Consulting) and Mariateresa Maggiolino (Bocconi), LAPSI 2.0 - competition law issues position paper, available at http://www.lapsi-project.eu/sites/lapsi-project.eu/files/LAPSIcompetitionartikelDraftII-1.pdf; Elisabeth Eklund and Oscar Jansson, Lower fees for re-use of public sector information - the PSI Directive and cases from the Swedish Competition Authority, available at http://www.worldservicesgroup.com/publications.asp?action=article&artid=4792; see also Björn Lundqvist, Marc de Vries, Emma Linklater och Liisa Rajala Malmgren, Business Activity and Exclusive Right in the Swedish PSI Act, Swedish Competition Authority, Uppdragsforskningsrapport 2011:2, available at http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/uppdragsforskning/forsk_rap_2011-2.pdf.</ref>. This case shows that the underlying economic rationale for the PSI Directive can actually run counter the stated objective of fostering an Open Government. +It should be noted that in March 2012, the Swedish Competition Authority closed an investigation with regard to a possible abuse of a dominant position by the Swedish Patent and Registration Office (SPRO) regarding its Trademark register. The Swedish Patent and Registration Office (SPRO) started to offer from 2010 free access to the Trademark register to the downstream end-user market. Customers on the upstream wholesale market were offered more detailed data in different formats (so-called ''"register lifted data"'') for a one-time fee and then a yearly fee. Before 2010, SPRO had offered access to the database to end-users for a fee. The SPRO motivated the decision to eliminate the fee with that free access was within the public task assigned to it by the government. The complaining (incumbent) re-user alleged that it was likely it will be squeezed out of the market by SPRO offering a competing product for free.<ref>Björn Lundqvist and Ylva Forsberg (Stockholm University), Marc de Vries (Citadel Consulting) and Mariateresa Maggiolino (Bocconi), LAPSI 2.0 -- competition law issues position paper, available at http://www.lapsi-project.eu/sites/lapsi-project.eu/files/LAPSIcompetitionartikelDraftII-1.pdf; Elisabeth Eklund and Oscar Jansson, Lower fees for re-use of public sector information -- the PSI Directive and cases from the Swedish Competition Authority, available at http://www.worldservicesgroup.com/publications.asp?action=article&artid=4792; see also Björn Lundqvist, Marc de Vries, Emma Linklater och Liisa Rajala Malmgren, Business Activity and Exclusive Right in the Swedish PSI Act, Swedish Competition Authority, Uppdragsforskningsrapport 2011:2, available at http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/uppdragsforskning/forsk_rap_2011-2.pdf.</ref>. This case shows that the underlying economic rationale for the PSI Directive can actually run counter the stated objective of fostering an Open Government. == Does Openness mean "accessible"? == @@ -342,13 +341,13 @@ We submit that transparency should be measured having regard to not only the ave For web content a standard has been developed by W3C, which is the Web Content Accessibility Guidelines (WCAG)<ref>{{cite web|title=Web Content Accessibility Guidelines (WCAG)|url=http://www.w3.org/WAI/intro/wcag|accessdate=16 October 2014}}</ref>. -European Commission (EC) Mandate M 376 required the three main European standardisation bodies CEN, CENELEC and ETSI to harmonise and facilitate the public procurement of accessible information and communication technologies (ICT) products and services within Europe. <ref>{{cite web|title=European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (European Commission Standardization Mandate M 376, Phase 2)|url=http://www.mandate376.eu/|accessdate=16 October 2014}}</ref> +European Commission (EC) Mandate M 376 required the three main European standardisation bodies CEN, CENELEC and ETSI to harmonise and facilitate the public procurement of accessible information and communication technologies (ICT) products and services within Europe.<ref>{{cite web|title=European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (European Commission Standardization Mandate M 376, Phase 2)|url=http://www.mandate376.eu/|accessdate=16 October 2014}}</ref> Both of the mentioned standardisation rules have been mandated by some Member States<ref>Some information on the adoption of accessibility standards, a recent book is {{cite book|last1=Buie|first1=Elizabeth|last2=Murray|first2=Diane|title=Usability in Government Systems: User Experience Design for Citizens and Public Servants|date=2012|publisher=Elsevier|isbn=978-0-12-391063-9|url=http://books.google.it/books?id=U3P4tdoETiwC&dq|accessdate=16 October 2014}}</ref> -The Commission reports that since January 2010, all new EUROPA websites have been created in compliance with WCAG 2.0, level AA success criteria.<ref>{{cite web|title=Web Accessibility|url=http://ec.europa.eu/digital-agenda/en/web-accessibility|publisher=European Commission|accessdate=16 October 2014}}</ref> and this includes the website of the European Parliament. <ref>{{cite web|title=Accessibility of the Europarl website|url=http://www.europarl.europa.eu/portal/en/accessibility|publisher=European Parliament|accessdate=16 October 2014}}</ref> +The Commission reports that since January 2010, all new EUROPA websites have been created in compliance with WCAG 2.0, level AA success criteria.<ref>{{cite web|title=Web Accessibility|url=http://ec.europa.eu/digital-agenda/en/web-accessibility|publisher=European Commission|accessdate=16 October 2014}}</ref> and this includes the website of the European Parliament.<ref>{{cite web|title=Accessibility of the Europarl website|url=http://www.europarl.europa.eu/portal/en/accessibility|publisher=European Parliament|accessdate=16 October 2014}}</ref> -However, "accessibility" seems to extend to much more than just web view, as the flow of information is certainly passing through means that go beyond the web and the Internet in general. There is, therefore, a wider need to ensure accessibility by allowing that the IT systems be interoperable and technology neutral, so that accessibility is ensured not only by providing accessible content, but by allowing any technology provider to ensure that they can build accessible tools using the content in whichever form it can be presented, and - as much as possible - to make tools to tackle specific problems for people with different impairments for whom the simple accessibility criteria are insufficient. +However, "accessibility" seems to extend to much more than just web view, as the flow of information is certainly passing through means that go beyond the web and the Internet in general. There is, therefore, a wider need to ensure accessibility by allowing that the IT systems be interoperable and technology neutral, so that accessibility is ensured not only by providing accessible content, but by allowing any technology provider to ensure that they can build accessible tools using the content in whichever form it can be presented, and -- as much as possible -- to make tools to tackle specific problems for people with different impairments for whom the simple accessibility criteria are insufficient. == Does "accessible" mean (also) Free and Open? == @@ -356,7 +355,7 @@ If "transparency" here means "directly open, transparent and accessible to all t In an interconnected world this goal can be efficiently achieved by means of technology, in particular through telecommunication technology. This seems a sufficiently self-evident and commonly accepted concept that does not deserve further discussion and evidence. -Telecommunication technology cannot exist without standards. This is also quite easily understood and common ground. <ref name="ITU in brief">"Standards are critical to the interoperability of ICTs and whether we exchange voice, video or data messages, standards enable global communications by ensuring that countries' ICT networks and devices are speaking the same language." From {{cite web|title=ITU in Brief|url=http://www.itu.int/en/ITU-T/about/Pages/default.aspx|accessdate=25 July 2014|ref=ITU}}</ref> +Telecommunication technology cannot exist without standards. This is also quite easily understood and common ground.<ref name="ITU in brief">"Standards are critical to the interoperability of ICTs and whether we exchange voice, video or data messages, standards enable global communications by ensuring that countries' ICT networks and devices are speaking the same language." From {{cite web|title=ITU in Brief|url=http://www.itu.int/en/ITU-T/about/Pages/default.aspx|accessdate=25 July 2014|ref=ITU}}</ref> Therefore "openness" shall mean that the external communication channels, of all sort, must use standards, which (or the many possible) standard(s) remaining yet to be assessed. @@ -367,21 +366,21 @@ All signs point in the direction that standards involved in a public institution [...] -Consequently, the standards that affect such conditions must be continuously free of barriers to the widespread use of the relevant access technology. Democratic values are inconsistent with differential costs in the form of royalty fees or interoperability barriers that potentially result in unequal citizen access to such information. </blockquote> +Consequently, the standards that affect such conditions must be continuously free of barriers to the widespread use of the relevant access technology. Democratic values are inconsistent with differential costs in the form of royalty fees or interoperability barriers that potentially result in unequal citizen access to such information.</blockquote> -It is also quite self-evident that transmitting information to an outlet that cannot be used by the intended recipient equals to opaqueness, as openness must be a characteristic of the entire space between the object and the observer. As said before, while having total openness - which means totally unencumbered space - is more a reference than a realistic goal, getting as close as practically possible to it is the yardstick of compliance with the rule in hand.<ref>{{cite web|last1=Updegrove|first1=Andrew|title=With Access and Information for All|url=http://www.consortiuminfo.org/bulletins/feb09.php#editorial|website=Consortium Info|accessdate=25 July 2014}}</ref> <ref>{{cite web|last1=Updegrove|first1=Andrew|title=How Open Must an Open Government Platform be?|url=http://www.consortiuminfo.org/bulletins/feb09.php#feature|accessdate=25 July 2014}}</ref> +It is also quite self-evident that transmitting information to an outlet that cannot be used by the intended recipient equals to opaqueness, as openness must be a characteristic of the entire space between the object and the observer. As said before, while having total openness -- which means totally unencumbered space -- is more a reference than a realistic goal, getting as close as practically possible to it is the yardstick of compliance with the rule in hand.<ref>{{cite web|last1=Updegrove|first1=Andrew|title=With Access and Information for All|url=http://www.consortiuminfo.org/bulletins/feb09.php#editorial|website=Consortium Info|accessdate=25 July 2014}}</ref> <ref>{{cite web|last1=Updegrove|first1=Andrew|title=How Open Must an Open Government Platform be?|url=http://www.consortiuminfo.org/bulletins/feb09.php#feature|accessdate=25 July 2014}}</ref> It is reasonable that the means and infrastructure to be used to achieve the goal of openness are a matter of technical decisions in a scenario of non-unlimited resources. It also seems reasonable that once a high level decision on which channel is more conveniently adopted, at an early stage of the decisional process, and throughout the life cycle of the adopted solutions, the decision makers shall measure how easily accessible the channel is. As soon as the radio broadcasting was shown to be a practical way to spread information, institutions found it convenient to use the radio channel to increase the outreach of their messages. When television came along, and become a widespread medium, that channel was also used, both directly and through facilitating reporting by the press. Because today Internet is one of the most used source of information, all institutions use the various communication avenues that Internet allows to increase, at exponential rates, access and feedback, including the European Parliament. -Internet is a showcase of open standards, because as such Internet is nothing more than a collection of protocols one stacked upon the other. <ref>For an historical perspective of how Internet developed and was defined, see {{cite journal | author=Barry M. Leiner, Vinton G. Cerf, David D. Clark, Robert E. Kahn, Leonard Kleinrock, Daniel C. Lynch, Jon Postel, Larry G. Roberts, Stephen Wolff | title=A Brief History of Internet | year=2003 | url=http://www.isoc.org/internet/history/brief.shtml | accessdate= 25 July 2014}}</ref> so that information and services are exchanged between and through an arbitrary set of networks through common interfaces. It is hard to think of something more accessible and widely available and efficient. No doubt any openness must involve Internet distribution. +Internet is a showcase of open standards, because as such Internet is nothing more than a collection of protocols one stacked upon the other.<ref>For an historical perspective of how Internet developed and was defined, see {{cite journal | author=Barry M. Leiner, Vinton G. Cerf, David D. Clark, Robert E. Kahn, Leonard Kleinrock, Daniel C. Lynch, Jon Postel, Larry G. Roberts, Stephen Wolff | title=A Brief History of Internet | year=2003 | url=http://www.isoc.org/internet/history/brief.shtml | accessdate= 25 July 2014}}</ref> so that information and services are exchanged between and through an arbitrary set of networks through common interfaces. It is hard to think of something more accessible and widely available and efficient. No doubt any openness must involve Internet distribution. But while it is true that Internet means a stack of protocols and interfaces, due to its anarchic and agnostic nature, it is possible that some of the chosen protocols are less easily available and widespread. In theory, parties can agree upon proprietary protocols and still have a way to communicate. Privacy-aware protocols, like those enabling VPNs are just there for that, creating a privileged channel that excludes all others not part of the conversation. Encryption is a way to transmit a confidential message over a public channel, introducing a secret and private element that allows only those privy to something to make sense of the message.<ref>A good list of sources on cryptography and the problem it solves can be found at {{cite web|url=http://en.wikipedia.org/wiki/Cryptography|title=Cryptography|accessdate=9 December 2014}}</ref> On the other end of the spectrum are those protocols, widespread, available and unencumbered standards that any entity is able to intercept and interpret to the fullest without any kind of restriction, where nothing, being it a technical, economic or legal element, hindering the access to the message. This is one possible way of defining open standards. Which is the subject of the next section. = Free and open in technology = -In the last paragraph of the previous section we have concluded that free and open is a proxy for "transparency". <ref>See also {{cite book|last1=Lathrop|first1= Daniel|last2=Ruma|first2=Laurel|title=Open government : [collaboration, transparency, and participation in practice]|date=2010|publisher=O'Reilly|isbn=978-0-596-80435-0|edition=1st ed.|url=http://books.google.it/books?id=JQJ5LF3h4ikC&dq=open+data+democracy+transparency&lr=&hl=it&source=gbs_navlinks_s|accessdate=14 October 2014}}</ref> Here we will describe what "Free and Open" mean from a technology point of view with reference to commonly accepted, yet controversial at times, sources. +In the last paragraph of the previous section we have concluded that free and open is a proxy for "transparency".<ref>See also {{cite book|last1=Lathrop|first1= Daniel|last2=Ruma|first2=Laurel|title=Open government : [collaboration, transparency, and participation in practice]|date=2010|publisher=O'Reilly|isbn=978-0-596-80435-0|edition=1st ed.|url=http://books.google.it/books?id=JQJ5LF3h4ikC&dq=open+data+democracy+transparency&lr=&hl=it&source=gbs_navlinks_s|accessdate=14 October 2014}}</ref> Here we will describe what "Free and Open" mean from a technology point of view with reference to commonly accepted, yet controversial at times, sources. == Free and Open Standards == @@ -391,7 +390,7 @@ The debate around the European Interoperability Framework in its two incarnation === The European Interoperability Framework V.1 === -The European Interoperability Framework was conceived in 2003 and defined as "[an] overarching set of policies, standards and guidelines which describe the way in which organisations have agreed, or should agree, to do business with each other." <ref name=IDABC>{{cite web|title=EIF - European Interoperability Framework for pan-European eGovernment services|url=http://ec.europa.eu/idabc/en/document/2319/5644.html|accessdate=7 August 2014}}</ref> In essence, it is an effort put in place to have one reference for public administrations as well as private entities within Europe to seamlessly share services and data with each other, by means of agreed practices and standards, as an action from eEurope 2005 Action Plan. +The European Interoperability Framework was conceived in 2003 and defined as "[an] overarching set of policies, standards and guidelines which describe the way in which organisations have agreed, or should agree, to do business with each other." <ref name=IDABC>{{cite web|title=EIF -- European Interoperability Framework for pan-European eGovernment services|url=http://ec.europa.eu/idabc/en/document/2319/5644.html|accessdate=7 August 2014}}</ref> In essence, it is an effort put in place to have one reference for public administrations as well as private entities within Europe to seamlessly share services and data with each other, by means of agreed practices and standards, as an action from eEurope 2005 Action Plan. One of the tasks of the project was indeed to find some common ground as to what "standard" means and what an "open standard" also means: @@ -402,7 +401,7 @@ To attain interoperability in the context of pan-European eGovernment services, * The standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee. -* The intellectual property - i.e. patents possibly present - of (parts of) the standard is made irrevocably available on a royalty-free basis. +* The intellectual property -- i.e. patents possibly present -- of (parts of) the standard is made irrevocably available on a royalty-free basis. * There are no constraints on the re-use of the standard.<ref name=EIFv1>{{cite book|title=European Interoperability Framework For Pan-European eGovernment Services|isbn=92-894-8389-X|page=9|url=http://ec.europa.eu/idabc/servlets/Docd552.pdf?id=19529|accessdate=7 August 2014}}</ref> </blockquote> @@ -416,7 +415,7 @@ To our knowledge, that was the first attempt to define open standards in an offi In 2006, the European Commission has started the revision of the European Interoperability Framework<ref>{{cite web|title=Revision of the EIF and AG|url=http://ec.europa.eu/idabc/en/document/7728.html|accessdate=7 August 2014}}</ref>. The effort was completed with the communication of Version 2 in December 2010.<ref name=EIFv2>{{cite web|title=Annex 2 to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions 'Towards interoperability for European public services' COM(2010) 744 final |url=http://ec.europa.eu/isa/documents/isa_annex_ii_eif_en.pdf|accessdate=7 August 2014}}</ref> -Reportedly due to intense lobbying by industry representatives,<ref>{{cite web|title=European Commission Betrays Open Standards|url=http://blogs.computerworlduk.com/open-enterprise/2010/05/european-commission-betrays-open-standards/index.htm|website=ComputerWorld UK - Blog|accessdate=7 August 2014}}</ref> <ref>{{cite web|title=European Interoperability Framework supports openness|url=http://opensource.com/government/10/12/european-interoperability-framework-supports-openness|website=Opensource.com|accessdate=7 August 2014}}</ref> notably in the new document there is no reference to standards at all, let alone to open standards, but more vaguely to "open specifications". <ref>EIFv2 , page 26</ref> +Reportedly due to intense lobbying by industry representatives,<ref>{{cite web|title=European Commission Betrays Open Standards|url=http://blogs.computerworlduk.com/open-enterprise/2010/05/european-commission-betrays-open-standards/index.htm|website=ComputerWorld UK -- Blog|accessdate=7 August 2014}}</ref> <ref>{{cite web|title=European Interoperability Framework supports openness|url=http://opensource.com/government/10/12/european-interoperability-framework-supports-openness|website=Opensource.com|accessdate=7 August 2014}}</ref> notably in the new document there is no reference to standards at all, let alone to open standards, but more vaguely to "open specifications".<ref>EIFv2 , page 26</ref> The relevant language starts with "'''''If''''' the openness principle is applied in full" [emphasis added], therefore it is not even a recommendation that of applying openness in full, but only a trajectory is envisaged and made an hypothesis. Consequently Recommendation 22 of the EIFv2 states: @@ -436,9 +435,9 @@ If the openness principle is applied in full: * Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software. </blockquote> -"FRAND" is an acronym of "Free, Reasonable And Non Discriminatory" conditions, and is a term of the trade in the standardisation world, and beyond. However, it is not clear what it really means <ref>Most telling the EU-commissioned study for the European Commission - Directorate-General for Enterprise and Industry {{cite web|title=Patents and Standards - A modern framework for IPR-based standardization|url=http://ec.europa.eu/DocsRoom/documents/4843/attachments/1/translations/en/renditions/pdf|accessdate=14 October 2014}}, cfr pag. 130.</ref>, as for instance it can be argued that imposing a per copy royalty is discriminatory against Free Software or software with (other) strong ''"copyleft"'' licensing conditions. Therefore it is open to question whether FRAND conditions that do not allow "implementation in both proprietary and open source software" are indeed FRAND as per the very definition of open specifications. +"FRAND" is an acronym of "Free, Reasonable And Non Discriminatory" conditions, and is a term of the trade in the standardisation world, and beyond. However, it is not clear what it really means <ref>Most telling the EU-commissioned study for the European Commission -- Directorate-General for Enterprise and Industry {{cite web|title=Patents and Standards -- A modern framework for IPR-based standardization|url=http://ec.europa.eu/DocsRoom/documents/4843/attachments/1/translations/en/renditions/pdf|accessdate=14 October 2014}}, cfr pag. 130.</ref>, as for instance it can be argued that imposing a per copy royalty is discriminatory against Free Software or software with (other) strong ''"copyleft"'' licensing conditions. Therefore it is open to question whether FRAND conditions that do not allow "implementation in both proprietary and open source software" are indeed FRAND as per the very definition of open specifications. -This is not the place to resolve the issue, but it is indicative of how there is a tension between those who oppose extending the definition of Open Standards to something that is not as open as it can be (mainly, some of the biggest patent holders, yet not all of them), and those who advocate a stricter definition to include only something that is really open to be adopted, without the need to take affirmative steps to obtain a license, even from a patent pool.<ref>For a dissertation of the topic in general, please see {{cite journal|last1=Dolmans|first1=Maurits|last2=Piana|first2=Carlo|title=A Tale of Two Tragedies - A plea for open standards, and some comments on the RAND report|journal=International Free and Open Source Software Law Review|date=2010|volume=2|issue=2|pages=115-138|doi=10.5033/ifosslr.v2i2.46|url=http://www.ifosslr.org/ifosslr/article/view/46|accessdate=7 August 2014}}</ref> <ref>Also with useful analyses on openness of standards a more dated article: {{cite journal|last1=Krechmer|first1=Ken|title=Open Standards Requirements|journal=The International Journal of IT Standards and Standardization Research|date=7 February 2005|volume=4|issue=1|url=http://www.csrstds.com/openstds.pdf|accessdate=7 August 2014}}</ref> +This is not the place to resolve the issue, but it is indicative of how there is a tension between those who oppose extending the definition of Open Standards to something that is not as open as it can be (mainly, some of the biggest patent holders, yet not all of them), and those who advocate a stricter definition to include only something that is really open to be adopted, without the need to take affirmative steps to obtain a license, even from a patent pool.<ref>For a dissertation of the topic in general, please see {{cite journal|last1=Dolmans|first1=Maurits|last2=Piana|first2=Carlo|title=A Tale of Two Tragedies -- A plea for open standards, and some comments on the RAND report|journal=International Free and Open Source Software Law Review|date=2010|volume=2|issue=2|pages=115-138|doi=10.5033/ifosslr.v2i2.46|url=http://www.ifosslr.org/ifosslr/article/view/46|accessdate=7 August 2014}}</ref> <ref>Also with useful analyses on openness of standards a more dated article: {{cite journal|last1=Krechmer|first1=Ken|title=Open Standards Requirements|journal=The International Journal of IT Standards and Standardization Research|date=7 February 2005|volume=4|issue=1|url=http://www.csrstds.com/openstds.pdf|accessdate=7 August 2014}}</ref> === The UK definition === @@ -447,21 +446,21 @@ Whether it is advisable or not to adopt a firm stance on Royalty Free standard c One clear Royalty Free stance with really far reaching requirements case is the one adopted by the UK Government: <blockquote> -Open standard - definition<ref>{{cite web|last1=UK Cabinet|title=Open Standards principles|url=https://www.gov.uk/government/publications/open-standards-principles/open-standards-principles#open-standard---definition|accessdate=11 November 2014|ref=UK-open}}</ref> +Open standard -- definition<ref>{{cite web|last1=UK Cabinet|title=Open Standards principles|url=https://www.gov.uk/government/publications/open-standards-principles/open-standards-principles#open-standard---definition|accessdate=11 November 2014|ref=UK-open}}</ref> Open standards for software interoperability, data and document formats, which exhibit all of the following criteria, are considered consistent with this policy: -Collaboration - the standard is maintained through a collaborative decision-making process that is consensus based and independent of any individual supplier. Involvement in the development and maintenance of the standard is accessible to all interested parties. +Collaboration -- the standard is maintained through a collaborative decision-making process that is consensus based and independent of any individual supplier. Involvement in the development and maintenance of the standard is accessible to all interested parties. -Transparency - the decision-making process is transparent and a publicly accessible review by subject matter experts is part of the process. +Transparency -- the decision-making process is transparent and a publicly accessible review by subject matter experts is part of the process. -Due process - the standard is adopted by a specification or standardisation organisation, or a forum or consortium with a feedback and ratification process to ensure quality. (The European Regulation enabling specification of fora or consortia standards will enter into force 20 days after its publication in the EU Official Journal and will apply directly in all EU member states from 1 January 2013.) +Due process -- the standard is adopted by a specification or standardisation organisation, or a forum or consortium with a feedback and ratification process to ensure quality. (The European Regulation enabling specification of fora or consortia standards will enter into force 20 days after its publication in the EU Official Journal and will apply directly in all EU member states from 1 January 2013.) -Fair access - the standard is published, thoroughly documented and publicly available at zero or low cost. Zero cost is preferred but this should be considered on a case by case basis as part of the selection process. Cost should not be prohibitive or likely to cause a barrier to a level playing field. +Fair access -- the standard is published, thoroughly documented and publicly available at zero or low cost. Zero cost is preferred but this should be considered on a case by case basis as part of the selection process. Cost should not be prohibitive or likely to cause a barrier to a level playing field. -Market support - other than in the context of creating innovative solutions, the standard is mature, supported by the market and demonstrates platform, application and vendor independence. +Market support -- other than in the context of creating innovative solutions, the standard is mature, supported by the market and demonstrates platform, application and vendor independence. -Rights - rights essential to implementation of the standard, and for interfacing with other implementations which have adopted that same standard, are licensed on a royalty free basis that is compatible with both open source (see a list of open source licences approved by the Open Source Initiative via their License Review Process) and proprietary licensed solutions. These rights should be irrevocable unless there is a breach of licence conditions. +Rights -- rights essential to implementation of the standard, and for interfacing with other implementations which have adopted that same standard, are licensed on a royalty free basis that is compatible with both open source (see a list of open source licences approved by the Open Source Initiative via their License Review Process) and proprietary licensed solutions. These rights should be irrevocable unless there is a breach of licence conditions. </blockquote> === The Indian definition (an example of strictest approach) === @@ -483,7 +482,7 @@ An Identified Standard will qualify as an "Open Standard", if it meets the follo === Many more definitions === -These are just samples to show how strong the debate on Open Standards is and what the centerpoint of the discussion is: patents, or patent holders trying to extract royalty revenues for any time a standard is used; and claiming that a patent license, with attached conditions for use, should be agreed upon, even though on a "FRAND" basis. As of August 2014, Wikipedia counted no less than 20 different definitions, and undoubtedly many more exist. <ref>{{cite web|title=Open Standard|url=https://en.wikipedia.org/wiki/Open_standard#Specific_definitions_of_an_open_standard|website=Wikipedia|accessdate=7 August 2014}}</ref> +These are just samples to show how strong the debate on Open Standards is and what the centerpoint of the discussion is: patents, or patent holders trying to extract royalty revenues for any time a standard is used; and claiming that a patent license, with attached conditions for use, should be agreed upon, even though on a "FRAND" basis. As of August 2014, Wikipedia counted no less than 20 different definitions, and undoubtedly many more exist.<ref>{{cite web|title=Open Standard|url=https://en.wikipedia.org/wiki/Open_standard#Specific_definitions_of_an_open_standard|website=Wikipedia|accessdate=7 August 2014}}</ref> === The RFCs === @@ -493,7 +492,7 @@ RFCs are akin to formal standards, because an authoritative and documented sourc They should not be underestimated, as they are at the foundation of some of the most important and widely used protocols, such as the protocols that make the Internet email system <ref>e.g., the IMAP Protocols, see among them {{cite web|title=IMAP protcol, RFC1064|url=http://tools.ietf.org/html/rfc1064|accessdate=25 July 2014}}</ref> -IETF's RFCs are generally considered Open Standards, and are commonly understood as "Royalty Free" Open Standards, although the "IPR policies" (the rules according to which technologies can be introduced into the RFCs depending on the "Intellectual Property Rights" - mostly patents rights - are claimed by the contributing party) allow for royalty-bearing licensing of the included technologies. <ref>See IETF RFC 3979{{cite web|title=IETF, RFC 3979,|url=https://datatracker.ietf.org/doc/rfc3979/?include_text=1|accessdate=25 July 2014}}</ref> +IETF's RFCs are generally considered Open Standards, and are commonly understood as "Royalty Free" Open Standards, although the "IPR policies" (the rules according to which technologies can be introduced into the RFCs depending on the "Intellectual Property Rights" -- mostly patents rights -- are claimed by the contributing party) allow for royalty-bearing licensing of the included technologies.<ref>See IETF RFC 3979{{cite web|title=IETF, RFC 3979,|url=https://datatracker.ietf.org/doc/rfc3979/?include_text=1|accessdate=25 July 2014}}</ref> == Free and Open Source Software (FOSS) == @@ -501,7 +500,7 @@ IETF's RFCs are generally considered Open Standards, and are commonly understood There are two separate definitions on what is Free and what is Open Source Software.<ref name=piana_eup_juri>For an historical and general overview of Free and Open Source Software we refer to a briefing paper prepared for the Juri Commitee by Carlo Piana, which covers much of the background of Free Software {{cite journal|last1=Piana|first1=Carlo|title=A discussion of the different software licensing regimes|journal=European Parliament, Policy Department C: Citizens' Rights and Constitutional Affairs, Workshop: Legal aspects of free and open source software, Tuesday, 9 July 2013|pages=30-49|url=http://www.europarl.europa.eu/document/activities/cont/201307/20130708ATT69346/20130708ATT69346EN.pdf|accessdate=7 August 2014}}</ref> -The Free Software Definition (by the Free Software Foundation)<ref>{{cite web|title=What is free software - The Free Software Definition|url=https://gnu.org/philosophy/free-sw.html|accessdate=7 August 2014}}</ref>: +The Free Software Definition (by the Free Software Foundation)<ref>{{cite web|title=What is free software -- The Free Software Definition|url=https://gnu.org/philosophy/free-sw.html|accessdate=7 August 2014}}</ref>: <blockquote> A program is free software if the program's users have the four essential freedoms: @@ -527,15 +526,15 @@ The Open Source Definition (by the Open Source Initiative)<ref name=OSD>Full tex # License Must Be Technology-Neutral </blockquote> -Although the two definitions are different, it is difficult - nay impossible - to find a subset of licenses that qualify under one definition and are outside the other definition, therefore, for our scopes, we will treat Free Software and Open Source Software (i.e., software licensed under either definition) as synonyms. +Although the two definitions are different, it is difficult -- nay impossible -- to find a subset of licenses that qualify under one definition and are outside the other definition, therefore, for our scopes, we will treat Free Software and Open Source Software (i.e., software licensed under either definition) as synonyms. ==== Is that about it? ==== There is no serious contention as to whether Free Software is the golden standard for openness in software. -Yet, if openness is a continuum, there are lesser forms of openness also in the software making. For instance, claims can exist that proprietary platforms that implement standard interfaces are "open", and indeed some form of openness exists also in ultra-proprietary software like Microsoft Windows. <ref>Or at least it has been claimed. See for instance {{cite book|last1=Jansen|first1=Slinger|last2=Cusumano|first2=Michael A.|last3=Brinkkemper|first3=Sjaak|title=Software Ecosystems: Analyzing and Managing Business Networks in the Software Industry|publisher=Edward Elgar Publishing|date=2013|page=163}}</ref> Interoperability is a form of openness, standards are a form of openness, also in software. +Yet, if openness is a continuum, there are lesser forms of openness also in the software making. For instance, claims can exist that proprietary platforms that implement standard interfaces are "open", and indeed some form of openness exists also in ultra-proprietary software like Microsoft Windows.<ref>Or at least it has been claimed. See for instance {{cite book|last1=Jansen|first1=Slinger|last2=Cusumano|first2=Michael A.|last3=Brinkkemper|first3=Sjaak|title=Software Ecosystems: Analyzing and Managing Business Networks in the Software Industry|publisher=Edward Elgar Publishing|date=2013|page=163}}</ref> Interoperability is a form of openness, standards are a form of openness, also in software. -However, when it comes to software, the four freedoms granted by Free Software are not an easy yardstick with which to be measured. Full access to code, especially when it is enforceable through the ''"copyleft"'' conditions, has many advantages that go beyond the much touted "bazaar model" of development. <ref>{{cite web|last1=Raymond|first1=Eric S.|title=The Cathedral and the Bazaar|url=http://www.catb.org/esr/writings/cathedral-bazaar/|accessdate=11 August 2014}}</ref> Access to code and the legal permissions that the license provide mean anyone with sufficient skills can take over the program and "fork" it (forking means that someone parts from the current development and starts a new independent development branch). In other words, while full access to code does not mean that backdoors and insecurities cannot be inserted, they are quite easily discovered and easily fixed. But in essence, full access to code and the legal permissions that the license convey means that there is an assurance that the software development can proceed even in the event that for any reason relationships with the original developer become problematic. +However, when it comes to software, the four freedoms granted by Free Software are not an easy yardstick with which to be measured. Full access to code, especially when it is enforceable through the ''"copyleft"'' conditions, has many advantages that go beyond the much touted "bazaar model" of development.<ref>{{cite web|last1=Raymond|first1=Eric S.|title=The Cathedral and the Bazaar|url=http://www.catb.org/esr/writings/cathedral-bazaar/|accessdate=11 August 2014}}</ref> Access to code and the legal permissions that the license provide mean anyone with sufficient skills can take over the program and "fork" it (forking means that someone parts from the current development and starts a new independent development branch). In other words, while full access to code does not mean that backdoors and insecurities cannot be inserted, they are quite easily discovered and easily fixed. But in essence, full access to code and the legal permissions that the license convey means that there is an assurance that the software development can proceed even in the event that for any reason relationships with the original developer become problematic. The most important point is that in a Free Software environment, where the user benefits from the four freedoms and the legal permissions that this brings to them, from an economic point of view a new game (as in the Gaming Theory) is created, compared to what happens in a proprietary environment. This game creates a reassurance against lock-in, because most of the techniques that have been so far used to force clients to stay with one vendor have little meaning where an exact replica of the entire set of applications can be obtained from other sources, and further development of them can be taken over from any arbitrary point. Let us discuss it in more depth. @@ -551,17 +550,17 @@ Lock-in is a phenomenon where previous choices reduce the freedom to make future Locked-in solutions might not allow achievement of the goal of transparency, because budgetary and time constraints work against it. -The Commission has analysed this phenomenon with a lot of care, although sometimes it proved itself unwilling to take the medicine it prescribed to others,<ref>{{cite web|title=European Commission renews controversial Microsoft contract|url=http://www.computerweekly.com/news/1280095047/European-Commission-renews-controversial-Microsoft-contract|accessdate=9 December 2014}}</reF> within Action 23 of the Digital Agenda. <ref>{{cite web|title=Action 23: Provide guidance on ICT standardisation and public procurement|url=http://ec.europa.eu/digital-agenda/content/action-23-provide-guidance-ict-standardisation-and-public-procurement|accessdate=8 August 2014}}</ref> The Commission identified lock-in as an important problem that can only be cured with the adoption of open standards - although, as we have seen before, it failed to define properly what an open standard is and it showed a weak spine in taking the concept of openness where others took it. +The Commission has analysed this phenomenon with a lot of care, although sometimes it proved itself unwilling to take the medicine it prescribed to others,<ref>{{cite web|title=European Commission renews controversial Microsoft contract|url=http://www.computerweekly.com/news/1280095047/European-Commission-renews-controversial-Microsoft-contract|accessdate=9 December 2014}}</reF> within Action 23 of the Digital Agenda.<ref>{{cite web|title=Action 23: Provide guidance on ICT standardisation and public procurement|url=http://ec.europa.eu/digital-agenda/content/action-23-provide-guidance-ict-standardisation-and-public-procurement|accessdate=8 August 2014}}</ref> The Commission identified lock-in as an important problem that can only be cured with the adoption of open standards -- although, as we have seen before, it failed to define properly what an open standard is and it showed a weak spine in taking the concept of openness where others took it. <blockquote> -The Digital Agenda for Europe identified "lock-in" as a problem. Building open ICT systems by making better use of standards in public procurement will improve and prevent the lock-in issue. <ref>{{cite web|title=Open Standards|url=http://ec.europa.eu/digital-agenda/en/open-standards|accessdate=8 August 2014}}</ref> +The Digital Agenda for Europe identified "lock-in" as a problem. Building open ICT systems by making better use of standards in public procurement will improve and prevent the lock-in issue.<ref>{{cite web|title=Open Standards|url=http://ec.europa.eu/digital-agenda/en/open-standards|accessdate=8 August 2014}}</ref> </blockquote> Therefore standards are a way to avoid lock-in. The Commission carefully avoids using the wording "open standards", but many indications and references make it clear that it points to that when it refers to "standard based procurement". The two main working documents describing how public procurement should be done to avoid lock-in are in * A Communication titled "Against lock-in: building open ICT systems by making better use of standards in public" <ref>{{cite web|title=Against lock-in: building open ICT systems by making better use of standards in public|url=http://ec.europa.eu/digital-agenda/news/against-lock-building-open-ict-systems-making-better-use-standards-public|accessdate=8 August 2014}}</ref> -* A staff working document "Guide for the procurement of standards-based ICT - Elements of Good Practice" <ref>{{cite web|title=Guide for the procurement of standards-based ICT - Elements of Good Practice|url=http://ec.europa.eu/digital-agenda/news/guide-procurement-standards-based-ict-%E2%80%94-elements-good-practice|accessdate=8 August 2014}}</ref> +* A staff working document "Guide for the procurement of standards-based ICT -- Elements of Good Practice" <ref>{{cite web|title=Guide for the procurement of standards-based ICT -- Elements of Good Practice|url=http://ec.europa.eu/digital-agenda/news/guide-procurement-standards-based-ict-%E2%80%94-elements-good-practice|accessdate=8 August 2014}}</ref> Proceeding from the above, we can safely take a few conclusions: @@ -571,9 +570,9 @@ Proceeding from the above, we can safely take a few conclusions: The cited documents take no stance towards (or against, for that matter) '''Free Software''' in the lock-in avoidance context. However it seems that one cannot take any conclusions from this omission, only that the lock-in avoidance shall be taken into consideration with all kind of licensing regimes or development environment or technology. At the same time there seems to be no contradiction in the principle we have introduced that Free Software enhances the anti-lock-in power of the user (so much that even the user has the permission to be developer). And we reiterate the fundamental concepts: -* Truly Free Software solutions are outside the control of the vendor. The vendor can have a temporary control or even have a stronghold over one solution, but examples exist that when this control is too tight and against the interests of the Community, the ability to "fork" is an essential tool that exerts a constraint on any dictatorial vendor. <ref>A useful discussion on what the ability to fork means in terms of relieving competition concerns can be found in {{cite web|title=Commission Decision of 21.01.2010 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement(Case No COMP/M.5529 - Oracle/ Sun Microsystems)|url=http://ec.europa.eu/competition/mergers/cases/decisions/m5529_20100121_20682_en.pdf|accessdate=10 November 2014}}, Section 4.4.3 (pag. 118 onwards).</ref> +* Truly Free Software solutions are outside the control of the vendor. The vendor can have a temporary control or even have a stronghold over one solution, but examples exist that when this control is too tight and against the interests of the Community, the ability to "fork" is an essential tool that exerts a constraint on any dictatorial vendor.<ref>A useful discussion on what the ability to fork means in terms of relieving competition concerns can be found in {{cite web|title=Commission Decision of 21.01.2010 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement(Case No COMP/M.5529 -- Oracle/ Sun Microsystems)|url=http://ec.europa.eu/competition/mergers/cases/decisions/m5529_20100121_20682_en.pdf|accessdate=10 November 2014}}, Section 4.4.3 (pag. 118 onwards).</ref> * The availability of source code, and possibly a healthy and diverse development community, is a guarantee that there is no orphan work or constrained upgrade path. Free Software allows the choice to buy or make, or to have made by others unrelated to the copyright holder. -* Proprietary software vendors have incentives and abilities to lock clients in <ref> The most striking example is probably the ''Microsoft'' case {{cite web|title=Commission Decision of 24.03.2004 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-3/37.792 Microsoft)|url=http://ec.europa.eu/competition/antitrust/cases/dec_docs/37792/37792_4177_1.pdf|accessdate=10 November 2014}} </ref>. Free Software vendors have less, or even no incentives toward locking their clients in, because efforts would be largely ineffective or impossible. De facto, most of Free Software project tend to use open standards,and non open standards and format only if network effects make the former non viable. +* Proprietary software vendors have incentives and abilities to lock clients in <ref>The most striking example is probably the ''Microsoft'' case {{cite web|title=Commission Decision of 24.03.2004 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-3/37.792 Microsoft)|url=http://ec.europa.eu/competition/antitrust/cases/dec_docs/37792/37792_4177_1.pdf|accessdate=10 November 2014}} </ref>. Free Software vendors have less, or even no incentives toward locking their clients in, because efforts would be largely ineffective or impossible. De facto, most of Free Software project tend to use open standards,and non open standards and format only if network effects make the former non viable. * The European Parliament should use IT solutions guaranteed to be independent from IT vendors. Instead of making IT decision based on cost, it should prefer technologies that allow others to work with it. == Free and Open data and content == @@ -601,19 +600,19 @@ One of the enablements of the Internet (and open standards) is the ability to re It is therefore important, in the view of the authors, that any time when the rules would allow free re-use of the content, including translation, transformation, aggregation, it is explicitly stated in a clear and irrevocable way. Absent a clear and final rule that puts the content in "public domain", there should be a default "licensing statement" to clarify the legal status of it. We submit that removing any uncertainties is a step in the right direction. That is, ensuring that all information subject to transparency be '''Open Content'''. -Legal instruments exist to this effect. The most known set of these instruments with regard to creative content is the Creative Commons<ref>Creative Commons http://creativecommons.org/</ref> one. In particular, the Creative Commons Attribution - only license and the Creative Commons CC-zero (or CC-0) seem to be the most appropriate for implementing an affirmative open content strategy where the copyright status of the work so permits. In order for it to be possible, all material prepared for and upon instruction of the Parliament needs to be licensed by their authors under the same or compatible licenses. +Legal instruments exist to this effect. The most known set of these instruments with regard to creative content is the Creative Commons<ref>Creative Commons http://creativecommons.org/</ref> one. In particular, the Creative Commons Attribution -- only license and the Creative Commons CC-zero (or CC-0) seem to be the most appropriate for implementing an affirmative open content strategy where the copyright status of the work so permits. In order for it to be possible, all material prepared for and upon instruction of the Parliament needs to be licensed by their authors under the same or compatible licenses. Because this is an analysis of open content only from the point of view of transparency, we defer to the many studies on the open content in the public sector for a more detailed discussion. === (Open) Data === -The same reasoning is applicable to the data. The ability to drill into data to distil information is generally understood to be a key to transparency. <ref>{{cite web|title=Democracy and open data: are the two linked?|url=http://congressionaldata.org/democracy-and-open-data-are-the-two-linked/|accessdate=14 October 2014}}</ref> In order to perform actions on data it is necessary that not only data are made available, i.e., disclosed, but that all the actions necessary to perform the analysis and meta-analysis are permitted. This might not always be the case or uncertainty could exist on it. +The same reasoning is applicable to the data. The ability to drill into data to distil information is generally understood to be a key to transparency.<ref>{{cite web|title=Democracy and open data: are the two linked?|url=http://congressionaldata.org/democracy-and-open-data-are-the-two-linked/|accessdate=14 October 2014}}</ref> In order to perform actions on data it is necessary that not only data are made available, i.e., disclosed, but that all the actions necessary to perform the analysis and meta-analysis are permitted. This might not always be the case or uncertainty could exist on it. -Datasets are protected in Europe by the Database Directive, as implemented by member states. <ref>{{cite web|title=Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases|url=http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML|accessdate=8 August 2014}}</ref> +Datasets are protected in Europe by the Database Directive, as implemented by member states.<ref>{{cite web|title=Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases|url=http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML|accessdate=8 August 2014}}</ref> The Database Directive provides a protection of database on which the maker has put a significant investment in the obtaining, verification or presentation of the contents. This protection is a different kind from copyright or patent protection, and therefore is called ''"sui generis"'' (of its own kind) and, like the copyright, is granted without any affirmative action, including issuing an express claim, by the maker. Therefore, in default of an express license or waiver, the principle is that the extraction, duplication and dissemination of the dataset (or of a substantial part thereof) is reserved to the maker. -Therefore, in order for datasets to be re-used, and thus to enhance their availability, id est, transparency, data should be treated as long as possible as "Open Data". <ref>An open data definition, modelled upon the Open Source Definition can be found at {{cite web|title=Open Definition|url=http://opendefinition.org/od/}}</ref> Open data in the public sector is such a common ground that many states have stated in full the principle that data by default should be open. <ref>See for instance US's {{cite web|title=Executive Order -- Making Open and Machine Readable the New Default for Government Information|url=http://www.whitehouse.gov/the-press-office/2013/05/09/executive-order-making-open-and-machine-readable-new-default-government-|accessdate=8 August 2014}}</ref> Among them the G8 countries have adopted a clear document favouring the use of Open Data. <ref>{{cite web|title=Open Data Charter|url=https://www.gov.uk/government/publications/open-data-charter|accessdate=8 August 2014}}</ref> <ref>A useful resource for information on open data in a governmental environment can be found at {{cite web|title=Citizens, democratic accountability and governance|url=https://okfn.org/opendata/why-open-data/citizenship-and-governance/|website=Open Knowledge|accessdate=8 August 2014}}</ref> <ref>{{cite web|title=Open Data: unleashing the potential|url=https://www.gov.uk/government/publications/open-data-white-paper-unleashing-the-potential|website=Gov.UK|accessdate=10 November 2014}}</ref> Across Europe, a drive towards open data is given also by the PSI Directive, which prescribes that certain data held and produced by the Public Administration at large be made available for industry perusal <ref name=psi>{{cite web|title=European legislation on reuse of public sector information|url=https://ec.europa.eu/digital-agenda/en/european-legislation-reuse-public-sector-information}}</ref>. +Therefore, in order for datasets to be re-used, and thus to enhance their availability, id est, transparency, data should be treated as long as possible as "Open Data".<ref>An open data definition, modelled upon the Open Source Definition can be found at {{cite web|title=Open Definition|url=http://opendefinition.org/od/}}</ref> Open data in the public sector is such a common ground that many states have stated in full the principle that data by default should be open.<ref>See for instance US's {{cite web|title=Executive Order -- Making Open and Machine Readable the New Default for Government Information|url=http://www.whitehouse.gov/the-press-office/2013/05/09/executive-order-making-open-and-machine-readable-new-default-government-|accessdate=8 August 2014}}</ref> Among them the G8 countries have adopted a clear document favouring the use of Open Data.<ref>{{cite web|title=Open Data Charter|url=https://www.gov.uk/government/publications/open-data-charter|accessdate=8 August 2014}}</ref> <ref>A useful resource for information on open data in a governmental environment can be found at {{cite web|title=Citizens, democratic accountability and governance|url=https://okfn.org/opendata/why-open-data/citizenship-and-governance/|website=Open Knowledge|accessdate=8 August 2014}}</ref> <ref>{{cite web|title=Open Data: unleashing the potential|url=https://www.gov.uk/government/publications/open-data-white-paper-unleashing-the-potential|website=Gov.UK|accessdate=10 November 2014}}</ref> Across Europe, a drive towards open data is given also by the PSI Directive, which prescribes that certain data held and produced by the Public Administration at large be made available for industry perusal <ref name=psi>{{cite web|title=European legislation on reuse of public sector information|url=https://ec.europa.eu/digital-agenda/en/european-legislation-reuse-public-sector-information}}</ref>. The European Commission, not bound to the PSI Directive, recognising the importance that all data produced by it be available to the general public as much as possible in an open and unencumbered fashion, and possibly also in a machine-readable format , has adopted a Decision on re-use of Commission documents (2011/833/EU)<ref>{{cite web|title=Rules for the re-use of Commission information|url=https://ec.europa.eu/digital-agenda/en/news/rules-re-use-commission-information|accessdate=14 October 2014}}</ref>, adopting an open by default rule (Art. 9). As for the formats, Art. 8 of said Decision provides: @@ -630,7 +629,7 @@ Formats for documents available for reuse 4. The Commission or the Publications Office may not be required to continue the production of certain types of documents or to preserve them in a given format with a view to the reuse of such documents by a natural or legal person.<ref>Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), OJ L 330, 14.12.2011, p. 39-42</ref></blockquote> -While fully analysing the licensing of data goes beyond the scope of this study, and while the discussion on open standards also covers the ''way'' (or format) in which data are made available for non-intermediated consumption, we suggest that not only for transparency purpose, but in order to generally remove unnecessary confusion, that instead of '''licensing''' data, a '''waiver''' on database right is adopted as default legal release tool. <ref>One of the authors has explained this finding in {{cite web|title=FreeGIS.net Data Licence 1.0|url=https://freegis.net/documents/10157/14646/FreeGIS+data+licence+1?version=1.0}} [ITA], but see also {{cite web|last1=Morando|first1=Federico|title=http://leo.cineca.it/index.php/jlis/article/view/5461|url=http://leo.cineca.it/index.php/jlis/article/view/5461|accessdate=8 August 2014}}</ref> +While fully analysing the licensing of data goes beyond the scope of this study, and while the discussion on open standards also covers the ''way'' (or format) in which data are made available for non-intermediated consumption, we suggest that not only for transparency purpose, but in order to generally remove unnecessary confusion, that instead of '''licensing''' data, a '''waiver''' on database right is adopted as default legal release tool.<ref>One of the authors has explained this finding in {{cite web|title=FreeGIS.net Data Licence 1.0|url=https://freegis.net/documents/10157/14646/FreeGIS+data+licence+1?version=1.0}} [ITA], but see also {{cite web|last1=Morando|first1=Federico|title=http://leo.cineca.it/index.php/jlis/article/view/5461|url=http://leo.cineca.it/index.php/jlis/article/view/5461|accessdate=8 August 2014}}</ref> = Practical applications = @@ -649,9 +648,9 @@ Meanwhile, the email system is threatened by all sort of attacks, because of its The email system, which is basically made of two server components (one for sending the outbound emails, one for receiving, storing and forwarding to the recipient) and one client component. The standard server components are: * the Simple Mail Transfer Protocol (SMTP)<ref>http://tools.ietf.org/html/rfc5321</ref> for relaying and sending the messages out; * and the Internet Message Access Protocol (IMAP)<ref>http://tools.ietf.org/html/rfc3501</ref> and the Post Office Protocol (POP)<ref>http://tools.ietf.org/html/rfc1939</ref> for accepting, storing and making available the inbound message. -The client component can be a local application, installed on a computer, or a web application - often referred to as "webmail" - which offers retrieving, reading, composing and sending services that replicate those of the local application, without the need to locally download the message. +The client component can be a local application, installed on a computer, or a web application -- often referred to as "webmail" -- which offers retrieving, reading, composing and sending services that replicate those of the local application, without the need to locally download the message. -Some providers have developed proprietary extensions to these protocols and services, probably the most popular is the MAPI protocol that links together the client Microsoft Outlook (and other clients that implement the protocol) with Microsoft Exchange Server <ref>{{cite web|url=http://msdn.microsoft.com/en-us/library/cc307725%28EXCHG.80%29.aspx|accessdate=7 October 2014|title=Exchange Server Protocols}}</ref> , but also Google's Gmail and Apple's Mail use proprietary protocols, especially for mobile consumption of the email services. +Some providers have developed proprietary extensions to these protocols and services, probably the most popular is the MAPI protocol that links together the client Microsoft Outlook (and other clients that implement the protocol) with Microsoft Exchange Server<ref>{{cite web|url=http://msdn.microsoft.com/en-us/library/cc307725%28EXCHG.80%29.aspx|accessdate=7 October 2014|title=Exchange Server Protocols}}</ref>, but also Google's Gmail and Apple's Mail use proprietary protocols, especially for mobile consumption of the email services. If for the outside world, using those proprietary client/server protocols makes very little difference, as the email is sent and received through standard protocols (although compliance with content and transport standards can vary), it is important that their adoption does not impair the ability of clients that do not implement them to access the email without impairment. @@ -687,7 +686,7 @@ Publishing information in the form of documents can be achieved through numerous However, people rarely work with web pages and web pages are most of the time not just documents. Individuals and working groups still use "standalone" documents that they share, edit, print, archive and make available to a larger audience, and these documents are still largely based on the same model of paper documents and are made using document applications (such as wordprocessors, spreadsheets, presentations applications). As the bulk of the documents produced by public institutions are generated, kept and electronically exchanged in their original form, or "printed" and exchanged as if they were on paper, many times it has been suggested that the use of proprietary and non standard documents tilt the table in favour of the proponents of those documents and at the same time limit the access to those document by those who do not use the applications made by the same proponents. -The state of Massachusetts has perhaps been the first taking action to solve this situation and mandate the use of open standards in document files made and exchanged by the public administration. <ref>{{cite web|title=Massachusetts moves ahead sans Microsoft|url=http://news.cnet.com/Massachusetts-moves-ahead-sans-Microsoft/2100-1012_3-5878869.html|accessdate=13 October 2014}}</ref>. It will take too long to narrate the discussion that ensued. At the time of writing, the last large government to take action in this regard has been the UK Cabinet, which has opened a very large consultation and performed a thorough analysis of the best way to achieve "transparency and accountability of government and its services". Citing from the premises of this study: +The state of Massachusetts has perhaps been the first taking action to solve this situation and mandate the use of open standards in document files made and exchanged by the public administration.<ref>{{cite web|title=Massachusetts moves ahead sans Microsoft|url=http://news.cnet.com/Massachusetts-moves-ahead-sans-Microsoft/2100-1012_3-5878869.html|accessdate=13 October 2014}}</ref>. It will take too long to narrate the discussion that ensued. At the time of writing, the last large government to take action in this regard has been the UK Cabinet, which has opened a very large consultation and performed a thorough analysis of the best way to achieve "transparency and accountability of government and its services". Citing from the premises of this study: <blockquote> [I]n order for data to be used this way, it has to be released in a format that will allow people to share it and combine it with other data to use it in their own applications. This is why transparency isn't just about access to data, but also making sure that it is released in an open, reusable format.<ref>{{cite web|title=Improving the transparency and accountability of government and its services|url=https://www.gov.uk/government/policies/improving-the-transparency-and-accountability-of-government-and-its-services|accessdate=13 October 2014}}</ref></blockquote> |