[FSFE] Interoperable Europe Act: an ambition that turned out to be watered-down

[press at fsfe.org]

 = Interoperable Europe Act: an ambition that turned out to be watered-down =

[ Read online: https://fsfe.org/news/2023/news-20231113-01.it.html ]

Decision makers are meeting to agree on the final text of the
Interoperable Europe Act (IEA). There is a concerning wording related to
giving priority to Free Software when implementing interoperable
solutions and confusing criteria to do so. Overall, what could have been
a very ambitious initiative turned out to be another regulation with
ambiguous and problematic wording.

The FSFE has received exclusive access to the the final agreement of the
IEA [1] which will be agreed on tonight, on 13 November. We welcome that
there is a clear definition of Free Software licenses, as well as the
intention to monitor the development of Free Software interoperable
solutions in the public sector.

There is, nonetheless, an especially concerning wording in the text when
it comes to the sharing and reusing of interoperability solutions
(Art4(5a)). The draft text suggests that public administrations should
prioritise Free Software when deciding on the implementation of
interoperability solutions. However, the way the final text looks is
problematic for two reasons:

The wording /"solutions that do not carry restrictive licensing terms,
such as open source solutions"/ implies that there are other solutions
that do not carry restrictive licensing terms apart from open source
licenses. If so, which ones would those be? This is indeed not clear in
the text and this leads to legal uncertainty.

Since this specific wording can become extremely misleading, it is
particularly important to highlight this problematic loophole. To serve
as an example, we have the well-known fact that FRAND licensing terms -
that in theory stand for "fair, reasonable, and non-discriminatory"
terms - in practice are incompatible with most of Free Software [2]. In
the past, we have already criticised the stance of the Commission on
such licensing and we have also pointed out that in fact FRAND licences
cannot be considered fair, reasonable nor non-discriminatory.

Furthermore, the European Commission has watered down the already
ambiguous wording of this article by limiting the situations in which
public administrations shall prioritise Free Software interoperable
solutions by adding the following criteria: /"when equivalent in
functionalities, total cost, user-centricity, cybersecurity or other
relevant objective criteria"./

This wording undermines a regulation that aims to make the sharing and
reuse of solutions a more common practice among public administrations.
By adding this criteria to allow public administrations to actually
refuse to use Free Software solutions, the Commission is going in the
opposite direction of the "Free Software first" approach [3] that this
legislation needs.

Wording as /"other relevant objective criteria"/ brings back, once
again, the constant problematic tendency of the Commission to limit Free
Software and its adoption by adding ambiguous and unclear wording. It
also shows a lack of ambition which could have led it to become a real
game changer.

By adopting this position, the European Commission is also falling short
of its own ambitions, already defined in documents such as the Open
Source Strategy [4] and the ’Decision on the open source licensing and
reuse of Commission software’. Therefore, it is deeply concerning that
the European Commission is now pushing back by turning on the opposite
direction.

Last but not least, unfortunately, the chance for other stakeholders to
be part of the governance structure, specifically on the Board, has been
removed from the final text, being currently only up to the Chair to
decide if an expert can join the Board as an observer.

That is why the role of the Free Software community is crucial to
monitor the implementation of the IEA, while highlighting the importance
of Free Software for achieving interoperability in the European digital
public services.

 1: https://download.fsfe.org/documents/version-trilogue131123-1.pdf
 2: https://fsfe.org/freesoftware/standards/why-frand-is-bad-for-free-software.it.html
 3: https://fsfe.org/news/2023/news-20230323-02.it.html
 4: https://fsfe.org/news/2020/news-20201023-01.it.html

  == Informazioni sulla Free Software Foundation Europe ==

  La Free Software Foundation Europe è una Onlus che incoraggia gli utenti
  ad avere il controllo della tecnologia. Il Software è presente in tutti
  gli aspetti della nostra vita ed è importante che questa tecnologia ci
  aiuti anziché limitarci. Il Software Libero garantisce a tutti il
  diritto di usare, studiare, modificare e condividere il software. Questi
  diritti aiutano a sostenere altre libertà fondamentali come il diritto
  di parola, la libertà di stampa e la privacy.

  La FSFE aiuta persone e organizzazioni a comprendere come il Software
  Libero contribuisce alla libertà, alla trasparenza e
  all'auto-determinazione.  Potenziamo i diritti degli utenti abolendo le
  barriere che esistono nell'adottare il Software Libero, incoraggiamo le
  persone ad usare e sviluppare il Software Libero e forniamo le risorse
  per consentire a tutti di promuovere ulteriormente il Software Libero in
  Europa. 

  https://fsfe.org