Anti-innovation: EU excludes open source from new tech standards

As part of its Digital Single Market strategy, the European Commission has unveiled “plans to help European industry, SMEs, researchers and public authorities make the most of new technologies.” In order to “boost innovation,” the Commission wants to accelerate the creation of new standards for five buzzconcepts: 5G, cloud computing, internet of things, data technologies, and cybersecurity.

The key document is one entitled “ICT Standardisation Priorities for the Digital Single Market,” which says: “Open standards ensure … interoperability, and foster innovation and low market entry barriers in the Digital Single Market, including for access to media, cultural and educational content.” The word “open” occurs 26 times in the document, and is also frequently found in the other “communications” just released by the European Commission: on digitising European industry (9 times), and on the European Cloud Initiative (50 times).

“Open” is generally used in the documents to denote “open standards,” as in the quotation above. But the European Commission is surprisingly coy about what exactly that phrase means in this context. It is only on the penultimate page of the ICT Standardisation Priorities document that we finally read the following key piece of information: “ICT standardisation requires a balanced IPR [intellectual property rights] policy, based on FRAND licensing terms.”

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It’s no surprise that the Commission was trying to keep that particular detail quiet, because FRAND licensing—the acronym stands for “fair, reasonable, and non-discriminatory”—is incompatible with open source, which will therefore find itself excluded from much of the EU’s grand new Digital Single Market strategy. That’s hardly a “balanced IPR policy.”

The problem for open source is that standard licensing can be perfectly fair, reasonable, and non-discriminatory, but would nonetheless be impossible for open source code to implement. Typically, FRAND licensing requires a per-copy payment, but for free software, which can be shared any number of times, there’s no way to keep tabs on just how many copies are out there. Even if the per-copy payment is tiny, it’s still a licensing requirement that open source code cannot meet.

That de facto exclusion of open source from this major new EU initiative is shocking, but not entirely unexpected. The European Commission has been steadily moving to marginalise open source for over a decade.

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