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