The Sharing and Reuse Framework for IT Solutions: Fostering collaboration among public administrations
There is a lot of value in this document, but highlighting elements focused on open-source.
Uncertainty with regard to the liability exposure of relevant stakeholders and
the infringement of property rights assigned through, for example, copyright
and patents, negatively impact the sharing and reuse of IT solutions.
In order to reduce the degree of legal uncertainty about intellectual property
rights’ limitations and exceptions, public administrations are encouraged to
follow the recommendations listed below.
To facilitate collaborative software development and cooperation between
project partners, the use of standard templates for liability agreements is recommended.
Standard templates are practical tools such as licence, consortium and collaboration agreements. These templates make it easier for public administrations to adopt the suitable approach to intellectual property rights and licensing of IT solutions, which, in turn, increases the potential for their sharing and reuse.
4.2. Decide the type of rights’ attribution approach to be used as early as possible and inform all involved
The use of certificates of origin and collaboration agreements provides
developers with guidelines on the requirements to be followed when contributing
to the development and maintenance of IT solutions. It also ensures that the
guardian of a project’s output has the necessary ownership or rights over
all contributions to ensure further distribution under the chosen licence. It is
important that rights are attributed as early in the process as possible because
later amendments may prove difficult or impossible. Clarity on the attribution of
rights provides consumers with some form of legal assurance of the provenance
and integrity of their contribution.
The joint development of IT solutions can be successful with either a central or
decentralised control structure although each approach has its limitations. For
instance, where there is central control of intellectual property rights, better
coordination is achieved but it is possible that developers are discouraged from
contributing. Where developers are allowed to retain property rights, they are
motivated to contribute but issues of control over the broad IT solution may arise.
Additional constraints should also be taken into account. For instance, it is often
technically impossible for public administrations to give away rights.
Public administrations should use licences with the least legal friction possible,
i.e. with the minimum possible restrictions in terms of sharing and reuse of
software. This is best done by using open source licences, such as the EUPL.
Furthermore, to limit incompatibilities between licences and promote legal
interoperability of IT solutions, public administrations should reuse existing
licences instead of writing their own.
Currently, hundreds of licences are recognised as open and are used by public
administrations around the world. Such a proliferation of licences may lead to
compatibility issues, which could limit the sharing and reuse of IT solutions. When
merging two pieces of software code with different licences, for example, the
restrictions imposed by a first licence may not be compatible with the restrictions
imposed by a second one, making it impossible to use the combined solution.
In order to reduce this risk, it is important that public administrations
detect licence incompatibilities as early as possible, for example, with the support
of specific tools.
Recommended measures for central bodies
- Select and promote the use of appropriate licences To enable the reuse of IT solutions, central bodies should select appropriate licences and licence templates, and promote their use.
- Provide support on matters related to intellectual property rights and licensing
By providing practical advice in these areas, central bodies can support public
administrations dealing with intellectual property rights and licensing issues
related to the sharing and reuse of IT solutions. This may include, for example, helping them to better understand the rights and obligations associated with a given solution and to identify whether a third party holds any rights to it.
When procuring IT solutions, public administrations are often restricted by
compatibility requirements of existing proprietary interfaces, systems and
data formats or they simply underestimate the benefits of relying on
open specifications and standards.
This situation often results in poor procurement practices limiting competition, such as:
- referencing non-standard specifications, which only a few vendors know about and can comply with;
- referencing specific sources, trademarks, patents, etc., favouring certain companies or products.
These practices sometimes result in one vendor providing critical systems for many years and subsequently being difficult to move away from. Such vendor lock-in is estimated to cost European public administrations € 1.1 billion a year. Aside from increasing costs, it reduces the available vendor base, excludes new and innovative companies from providing alternative solutions and causes the market to stagnate.
Using standards and open specifications is crucial to avoid vendor lock-in. In the
context of IT procurement, public administrations should consider referencing
European and national standards or international IT specifications
identified by the European Commission.
Using common standards and open specifications:
- Reduces the technical work needed to link IT systems together;
- Results in cost savings due to lower maintenance and integration costs;
- Increases competition in the EU’s Digital Single Market.
In the context of IT procurement, public administrations should
assess and select the most appropriate standards and specifications.
Furthermore, by sharing their assessments of standards and technical
specifications with others, public administrations promote a more efficient use
of public funds, reduce duplication of work and improve transparency in the
procurement process.
A good way of sharing assessment findings is to create a common list of standards and specifications along with their assessments so that they can be reused by different public administrations.
the sharing and reuse of IT solutions The use of standard clauses and contractual templates is a common practice in public administrations. Emphasis should be given to making ‘sharing and reuse’ part of these clauses.
This way, vendor lock-in can be avoided. Similarly, the degree of legal certainty and
the potential for the procured IT solution to be shared with other administrations
will be increased. As such, clauses are usually issued by institutions and
organisations that are experts in the field and are drafted in a way that leaves
little room for different interpretation. Public administrations should, therefore,
develop standard clauses or reuse already existing ones.
The involvement of communities in the development and maintenance
of IT solutions fosters competition between service providers, especially when
large communities can contribute instead of one single company.
One of the main strengths of open source software is that the development process,
at its best, involves a community of several firms, individuals and other contributors.
Contribution is not limited to writing code; it extends to, for instance, providing
detailed reports of requirements and issues as well as examples and tutorials.
Public administrations can also provide indirect support to the open source
community by asking tenderers that have selected open source software to
demonstrate their level of contribution to the relevant developer community.
- Support the use of common standards and specifications
Central bodies should encourage the use of common standards and technical
specifications in public procurement, for example, by creating a common list of such specifications.