EIF v.3: makes you miss noughties

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European Interoperability Framework (EIF) – an EU initiative that aims to support the establishment of European public services, is designed to ensure interoperability of such services across all member states. Since 2004, when the first non-official document was published, the EIF is currently undergoing its third revision.

History lesson

The first EIF dates back to 2004 when Free Software was entering the debate on the EU level. The first version was a non-official document but by that time had a remarkable impact on the member states and their national eGovernment policies. Furthermore, its Open Standard definition (!) still serves a strong example for national policies. Most notable was its approach towards standard-essential patents (SEPs) that had to be made “irrevocably available on a royalty-free basis”, and that the availability of the standard specification “must be permissible to all to copy, distribute and use it for no fee or at a nominal fee”.

In 2010, the European Commission (EC) decided to update the EIF in order to change its status to a more official document. With the revision it became clear that with the EIF v.2 the EC did not want to follow the examples of several member states which continued to base their policies on the former EIF and its definition of Open Standards.

The definition of Open Standards in the EIF v.2 transformed to a weaker term “open specifications” that are only available for everyone to study, instead of all four freedoms guaranteed by the former version. The approach towards patents did also “slightly” change: the EC introduced FRAND (so-called “fair, reasonable, and non-discriminatory”) licensing terms that were supposed to allow the implementation of specification in both proprietary and Free Software, in addition to the royalty-free terms. FSFE followed extensively the process of EIF v.2, and identified the possible “inspiration” for the EC to water down the strong favour towards Open Standards and Free Software.

Today, in the light of the Digital Single Market initiatives, the EIF is yet again going through another revision. Digitisation of European industries cannot overlook public sector, and the EC is currently asking for the public opinion in its public consultation on this matter. As a part of this consultation, the public is invited to comment on the draft revision (EIF v.3, dated to February 2016) until 29 June 2016.

UnFRAND me, please!

On the first glance, the revision includes a slightly better approach towards “IPR” as it now gives preference to the royalty-free licensing terms for open specifications but still includes FRAND as the basis for the balanced framework that “fosters competition since providers working under various business models may compete to deliver products, technologies and services based on such specifications”.

What it lacks in this particular approach is that FRAND is not simply a question of paying royalties or not. It has been proved and showed on numerous occasions that FRAND is incompatible with Free Software in a way that cannot be fixed by simply changing the Free Software licence. It’s an inherent compatibility that restricts standard’s implementation in Free Software because FRAND impedes the exercise of four freedoms granted by Free Software: to use, study, share and improve. FRAND doesn’t allow any of these by default, and interferes with the collaborative innovation space. It requires to negotiate an individual licence every time a standard implementer (let’s say Free Software project) wants to build the service based on the standardised technology used by the public administration, and to provide the same service back to that same public administration. FRAND requires to pay royalties, usually based on the number of distributed copies of that service that in the case of Free Software is almost impossible to track. Even if Free Software project finally agrees on the individual licence with the acceptable royalty for the patent holder, any other public administration who wishes to reuse such service, needs to re-enter the negotiation with the patent holder in order to obtain the same rights. In conclusion, the technology rests where it sits and is only called a standard on the paper, imposed on the users and service providers by the poor “interoperability” policies.

European Intraoperability Framework

So what about interoperability? Well, in theory it is possible to achieve so-called interoperability by imposing on everyone the same tools and solutions, preferably provided by the same service-providers. However, this scenario has a different name: intraoperability. According to Bob Sutor, intraoperability is a situation when “one product is somehow central and dominant, either by marketshare, attitude, or acquiescence. The connectivity is supported by protocols and data formats that favor the central software, and those are often prescribed by the provider.”

Interoperability, on the other hand, has to ultimately serve the values enshrined in the EU founding treaties, i.e. fair competition and protection of fundamental rights and freedoms. And it is about time the EU starts to promote real interoperability in order to, among many other things, get rid of its ICT lock-in.

Despite all its efforts to decrease its vendor lock-in, the EU stays in it steadily according to the recent “Study on the best practices for ICT procurement based on standards in order to promote efficiency and reduce lock-in” (PWC study for the EC, 2016). 52% of all respondents amongst public administrations have experienced vendor lock-in, the awareness of its negative implications is high (65%), but the situation leaves many respondents to “almost feel powerless to question any alternative”.

EIF could be a good chance to take a strong stance towards lock-in and leave no backdoors and compromises, however the EC seems to be cautious in affecting the existing lock-in situation, at least with its EIF revision.

Public consultation: have your say!

Important revisions for Open Standards and Free Software are not that common in the EU but if they happen, we should take that opportunity and have our voice heard.

Probably the most important aspect in the revised EIF that needs to be addressed, is the point on FRAND. Several recent Digital Single Market communications in particular on ICT standards follow the same faulty reasoning and are sprinkled with FRAND all over. We, Free Software community, should voice our concerns, and the revision of the EIF is one of the opportunities to do that.

Glyn Moody gives a useful overview of the situation and his response to the consultation. He asks the EC to uphold and reintroduce the “openness” principle present in the EIF v.2 to the revised version, and suggests to improve the point on FRAND:

In the section “Openness of formalised specifications,” the following is ambiguous: “Intellectual property rights related to the specification are licensed on FRAND terms or preferably on a royalty-free basis in a way that allows implementation in both proprietary and open source software.”

I believe it should be rewritten along the following lines: “Intellectual property rights related to the specification are licensed either on FRAND terms or preferably on a royalty-free basis, but in either case, in such a way that allows implementation in both proprietary software and by all open-source projects.” This makes clear that FRAND licensing must not only be compatible with open source, but that it must be compatible with all open source projects.”

As we can see, Moody’s approach towards FRAND is more flexible. He asks the EC to ensure that no Free Software project is excluded due to FRAND licensing. While it’s definitely a much more plausible approach (also because in the end there is no consensus on what constitutes FRAND), it is important to consider that FRAND is more than a question of licensing. It is a development and distribution system that goes against collaborative innovation – the core idea of Free Software.

Furthermore, FRAND is not suitable to software sector in general, as it emanated from the telecommunication sector and through traditional standard-setting organisations (SSOs). Software, internet and web, the way we know them today, have developed in a more collaborative way, thanks to Open Standards, and through fora and consortia. There is a strong trend in the SSOs working in these fields towards the absence of FRAND in their standardisation policies and practice. Hence, there is no pressing need to stiffle innovation and constrain competition by introducing harmful FRAND licensing.

Fair, reasonable and non-discriminatory licensing terms towards Free Software in standardisation can only be achieved by ‘restriction-free’ approach:

“free from legal or technical clauses that limit its utilisation by any party or in any business model”.

Therefore, I encourage everyone to provide their answers to the European Commission before 29 June and address FRAND issue in the section of “any further comments” in the end of the questionnaire, even if it’s just one sentence about the topic, e.g. “FRAND is harmful to Free Software, that is a strong basis for interoperability, and therefore should be discouraged in standards concerning software”.

As a community, we should show the Commission that we care about these issues and that we want to be included in the standardisation processes, as envisaged by the European Commission in another recent standardisation communication.

UPDATE: 27/06/2016 – Please find the FSFE’s response to the consultation here.

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