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@@ -11,7 +11,7 @@ = 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://www.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 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://www.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 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>. @@ -347,11 +347,11 @@ 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. @@ -413,9 +413,9 @@ To our knowledge, that was the first attempt to define open standards in an offi === The European Interoperability Framework V.2 === -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> +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: @@ -487,7 +487,7 @@ These are just samples to show how strong the debate on Open Standards is and wh RFCs are akin to formal standards, because an authoritative and documented source of normative and explanatory text exists. They have been adopted since the times of the ARPANET project ("Advanced Research Projects Agency Network" the initial network from which Internet originated) <ref>{{cite news | last=Crocker | first=Stephen D. | title=How the Internet Got Its Rules | newspaper=The New York Times | publisher=nytimes.com | date=6 April 2009 | url=http://www.nytimes.com/2009/04/07/opinion/07crocker.html | accessdate=2014-07-25}}</ref> and evolved over the times. RFCs are now a body of standards collected and organised by the IETF (Internet Engineering Task Force)<ref>IETF (Internet Engineering Task Force) http://www.ietf.org/</ref> and by the less famous Internet Society<ref>Internet Society http://www.internetsociety.org/</ref>. -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> +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> @@ -546,7 +546,7 @@ 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> @@ -562,9 +562,9 @@ Proceeding from the above, we can safely take a few conclusions: * Not only transparency mandates the use of open standards for the outward channel, but transparency leans heavily towards the use of standard-based decisions and modular, vendor independent, lock-in averted solutions. 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 == @@ -600,7 +600,7 @@ Because this is an analysis of open content only from the point of view of trans 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. @@ -677,7 +677,7 @@ 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> |