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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<ref>From {{cite web|title=Greens/EFA commissions "Rule 103" study|url=http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html|accessdate=12 October 2014|ref=Greens/EFA Internet Core Group public mailing list}}</ref> 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<ref>From {{cite web|title=Greens/EFA commissions "Rule 103" study|url=http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html|accessdate=12 October 2014|ref=Greens/EFA Internet Core Group public mailing list}}</ref> 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 viewpoints in this study belong to the authors and the authors alone. -The study has been open for public review on euwiki.org from October 15 till November 15 2014<ref>See diff on euwiki: http://en.euwiki.org/w/index.php?title=Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament&diff=17300&oldid=16920 </ref>. Online support during the review period has been 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>. +The study has been open for public review on euwiki.org from 15 October till 15 November 2014. Online support during the review period has been 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>. -The cover illustration has been created by Siri Reiter<ref name="Siri Reiter">'''Siri Reiter''' is a [http://sirireiter.dk/ graphic designer, illustrator and artist]. She graduated at [https://www.designskolenkolding.dk/en Kolding School of Design] and works primarily from Orø, Denmark.</ref> based on a photograph provided by the European Parliament's Audiovisual Services for Media who also holds the copyright of the original<ref>European Parliament's Audiovisual Services for Media website: http://audiovisual.europarl.europa.eu Audiovisual Services for Media and the photograph used for the illustration: http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15</ref>. +The cover illustration has been created by Siri Reiter<ref name="Siri Reiter">'''Siri Reiter''' is a [http://sirireiter.dk/ graphic designer, illustrator and artist]. She graduated at [https://www.designskolenkolding.dk/en Kolding School of Design] and works primarily from Orø, Denmark.</ref> based on a photograph provided by the European Parliament's Audiovisual Services for Media who also holds the copyright of the original<ref>European Parliament's Audiovisual Services for Media hosts the the photograph used for the illustration. Link: http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15</ref>. -The work and the cover illustration are licensed under Creative Commons Attribution-ShareAlike 4.0 International License<ref>Creative Commons Attribution-ShareAlike 4.0 International License http://creativecommons.org/licenses/by-sa/4.0/</ref>. - -The viewpoints in this study belong to the authors and the authors alone. +The work and the cover illustration are licensed under the Creative Commons Attribution-ShareAlike 4.0 International License. = Table of Contents = __TOC__ = Foreword = - -<div id="foreword" style="background-color: #ededed;"> -<div id="by">'''By Professor Douwe Korff.'''</div> +'''''By Professor Douwe Korff''''' 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. @@ -82,8 +78,7 @@ In order to elucidate the relevant requirements, the authors provide excellent o Crucially, the authors have managed to draw on all these sources to indicate clearly what should be done in practical, technical terms by the officials managing the information and IT systems relating to the work of the European Parliament to truly and fully achieve the legal requirement of "utmost transparency". This report will become a major point of reference for the debates on those steps. It is to be greatly commended for having taken the issue seriously (rather than just rely on all-too-easy slogans or political rallying cries). It cannot be dismissed by those with the power to take action. Rather, it should lead to Parliament clearly instructing its civil servants to take the steps needed to achieve the "utmost transparency" required of the institution. The recommendations should be fully implemented: that will enhance democracy, accountability and public participation, and trust in the Union at a time of doubt and insecurity. -<div id="place">'''''London 15 November 2014.'''''</div> -</div> +'''''London 15 November 2014''''' = Scope and method of analysis= @@ -101,7 +96,7 @@ The third trajectory is bottom-up, and analyses single areas of IT, which have b Finally, as the study analyses the inference between the principle of openness and Free Software and Open Standards, a short description of what they are cannot be avoided. -Although similar in concept, this study only addresses the adjacent area of "Right to Access" or "Freedom of Information" in so far it is relevant for the understanding of the Principle of Openness in EU law, and its possible requirements for the discussion on Free Software and Open Standards. Access to document procedures are laid down the Regulation (EC) No 1049/2001<ref>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001R1049&from=EN</ref> and by Rule 116<ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 116 : Public access to documents http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-115+DOC+XML+V0//EN&language=EN&navigationBar=YES</ref>, and are not as such material to this study. Undoubtedly the right of access to documents is an useful complement to openness as it ensures that the openness is achieved in full, by providing means to take an active role in disclosing facts and documents that are withheld from public view and should not. However, the access to documents mechanism proceeds by formal questions and answers, whereas the openness is evidently a more dynamic and holistic process that does not depend on legal actions and requests by individuals. +Although similar in concept, this study only addresses the adjacent area of "Right to Access" or "Freedom of Information" in so far it is relevant for the understanding of the Principle of Openness in EU law, and its possible requirements for the discussion on Free Software and Open Standards. Access to document procedures are laid down the Regulation (EC) No 1049/2001<ref>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001R1049&from=EN</ref> and by Rule 116<ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 116 : Public access to documents http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-116+DOC+XML+V0//EN&language=EN&navigationBar=YES</ref>, and are not as such material to this study. Undoubtedly the right of access to documents is an useful complement to openness as it ensures that the openness is achieved in full, by providing means to take an active role in disclosing facts and documents that are withheld from public view and should not. However, the access to documents mechanism proceeds by formal questions and answers, whereas the openness is evidently a more dynamic and holistic process that does not depend on legal actions and requests by individuals. Therefore, the right to access to documents as such is only treated insofar as it provides useful information for the application of the principle of openness in practice on the debate on Free Software and Open Standards. @@ -375,7 +370,7 @@ On 18 March 2010, the Swedish Government presented its Bill (2009/10:175) on Pub 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"? == @@ -419,7 +414,7 @@ As soon as the radio broadcasting was shown to be a practical way to spread info 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. +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 = @@ -623,8 +618,8 @@ The cited documents take no stance towards (or against, for that matter) '''Free If transparency means being able to receive information, in a legal environment that means "data" and "content". Protection of data and content under European law occurs under three main headlines: * Secrecy (or confidentiality) -* Copyright (or ''droit d'auteur''), which may or may not include "moral rights" -* Data base (or ''sui generis'') protection +* Copyright (or ''"droit d'auteur"''), which may or may not include "moral rights" +* Data base (or ''"sui generis"'') protection We can safely exclude "secrecy" from our analysis. Except for the matters that, in case, must be kept secret for any reasons, the transparency rule is the opposite of the secrecy rule. @@ -654,11 +649,11 @@ The same reasoning is applicable to the data. The ability to drill into data to 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. +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>. -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 <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>, 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: +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: <blockquote>Article 8 Formats for documents available for reuse @@ -868,5 +863,5 @@ mw.loader.state({"site":"ready","user":"ready","user.groups":"ready"}); mw.loader.load(["mediawiki.action.edit.collapsibleFooter","mediawiki.user","mediawiki.hidpi","mediawiki.page.ready","mediawiki.searchSuggest"],null,true); }</script> <script>if(window.mw){ -mw.config.set({"wgBackendResponseTime":285}); +mw.config.set({"wgBackendResponseTime":284}); }</script></body></html>
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