Government takes on proprietary software lobby in open standards battle

The UK government wants to push through a policy of using open standards when purchasing technology, but continues to face barriers posed by vested interests keen to maintain the dominance of proprietary systems.

Whitehall defeated official opposition to its open standards policy in October, Computer Weekly has learned. But the Cabinet Office still withdrew the policy after sustained lobbying by proprietary software vendors started arousing members of Parliament.

In its latest move to overcome such opposition, Cabinet Office minister Francis Maude (pictured) this week launched a consultation on the definition of open standards the second time the coalition has put the policy to public debate.

“Open standards for software and systems will reduce costs and enable us to provide better public services. We want to get this right; so we want to make sure everyone has the opportunity to have their say on this matter,” said Maude.

Threatened with expulsion

The British Standards Institution (BSI) had previously threatened the UK with expulsion from international standards bodies if the Cabinet Office implemented the open standards policy it launched in January 2011. BSI was backed by the International Standards Organisation (ISO) and its European counterpart CEN/CENELEC, as well as the UK Department for Business, Innovation and Skills.

But BSI’s opposition dried up just weeks before the Cabinet Office rescinded the policy in November, when the department told them they had got the wrong end of the stick. BSI now either refuses or is unable to articulate its opposition.

David Bell, head of external policy at the British Standards Institution, said he met with Liam Maxwell, Cabinet Office director of ICT futures, on 18 October. Bell reiterated BSI and ISO's opposition to the policy, but he was "reassured", he said, that the policy did not mean what either the BSI or its international partners thought it did.

BSI and ISO had threatened UK with expulsion because they thought the Cabinet Office had prohibited software that used proprietary standards - parameters of communication designed in the commercial interests of one corporation or patent holder. Their own standards are defined officially as proprietary, under terms known as FRAND - fair, reasonable and non-discriminatory. They feared an open standards policy would outlaw their own standards.

But Maxwell pointed out to Bell that the UK's open standards policy gave preference to open standards only "wherever possible". It was government merely exercising its prerogative as a paying customer to purchase a particular sort of technology in preference to another.

"We were reassured" said Bell. "Our standards wouldn't necessarily be excluded. We don't have the same fears we had in regards to our standards being fully excluded."

BSI and ISO have maintained their official opposition to the policy. Bell is unable to say why, other than that is BSI/ISO policy. A BSI spokeswoman said even BSI's director of standards, Cambridge engineering academic Dr Scott Steedman, could not articulate BSI's standards policy. Neither could his predecessor who retired in January, Mike Low.

BSI had issued threats over a policy it had misunderstood in support of a position it admitted it could not explain and had in fact not even formulated itself. BSI said its policy was set by ISO in Geneva. No-one at the BSI UK office could explain it. ISO has meanwhile been unable to articulate the policy either. Neither have those proprietary software companies in whose interest BSI and ISO policy is formed.

Apple, Microsoft, Oracle, and the Business Software Alliance (BSA), the proprietary software trade body, all refused to discuss their opposition to UK policy, though they have been happy to tell ministers and MPs about it on the quiet.

Francis Maude was therefore unsurprisingly firm in public questions about his policy last autumn. His opponents had not only crumbled but their arguments were unconvincing and only uttered in a whisper.

Parliamentary opposition

Maude firmly refused a public consultation on UK open standards policy on 17 October 2011 when Mike Weatherly, MP, called for one in a parliamentary question. The following day, BSI was "reassured" in its meeting with Maxwell. Three days later the open standards policy was affirmed with the publication of the Strategic Implementation Plan, the substance that outgoing CIO Joe Harley had put into the government ICT strategy.

Phil Pavitt, CIO of HM Revenue & Customs, was appointed senior responsible owner for open standards. He put his name to the pledge that the government would publish its first list of mandated open standards within a month. A little over five weeks later, Cabinet Office withdrew the policy and put it to public consultation.

A Cabinet Office brief leaked to Computer Weekly said the BSA had been lobbying MPs who had in turn lobbied Cabinet Office to rescind the policy. BSA had led unnamed MPs to believe the policy would undermine Britain's trade interests with China and India. Microsoft and Oracle, its most powerful members, had also raised trade protectionism as a reason to bar not proprietary standards but open standards.

Weatherly, Conservative MP for Brighton and Hove, has been about the only public opponent of the open standards policy in Parliament. He is paid, while holding public office, £2,500 to £4,500 for six to eight hours work in a typical month by the Motion Picture Licensing Co. Ltd. He is in other words a representative of the rights lobby and has represented their interests in Parliament. Weatherly, like Microsoft, Oracle and BSA, was unavailable for comment.

Patent law

What they have been saying privately is that the UK must use software standards that pay royalties to patent rights holders. Their argument falls flat however, when considered in respect of the fact that software patents are not permissible in UK and European law.

If a British company developed software using standards registered at ISO in Geneva under an obligation to a patent holder, that patent holder could only assert its rights under US law. It may be no coincidence that those corporations most vehemently opposed to UK policy are US corporations.

Most alarmingly, BSI says the royalty claims permissible under its and ISO's standards regulations are almost never used.

"We publish a lot of standards. Very few of them have proprietary rights in them," Bell told Computer Weekly. "It's going to be less than 1%."

A BSI spokeswoman backed him up. "That's not even [just] in IT," she said. “That's across the board - all 30,000 [BSI standards]. It's a minuscule amount."

"We actively discourage the inclusion of patents in standards," BSI later said in a statement. "It is only in exceptional circumstances that this happens. We are not aware of any embedded patents included in British Standards in the last five years."

Yet BSI, on the say so of ISO and in concert with the software patent lobby, continued to insist government should not declare for open standards because there might be exceptions when it might be required to allow a company to make a royalty claim in a US court against anyone attempting to implement the standard in Europe.

UK procurement policy had favoured open standards to become the norm, but allowed for the exception in case it arose. The software patent lobby wanted that exception to be adopted as the policy norm and for the preferred norm effectively to be treated as the exception.

Though proprietary standards are the desired exception they have managed to become the norm in software implementations. Their market power was the reason both the current and previous governments gave for introducing open standards policies. It is also the reason they both had trouble carrying those policies out, as was demonstrated last year by Bristol City Council's failure to choose anything other than a Microsoft software infrastructure, and the Cabinet Office's discovery that 70% of all software licences bought by UK government departments were Oracle.

In October, before putting the open standards policy to consultation, Cabinet Office reiterated the reason for its introduction. It was intended to "create a more open, transparent and competitive ICT marketplace". It would "remove barriers to SME participation in public sector procurement to create a fairer marketplace". It would also create a level playing field for competitors of the dominant software companies - most notably open source competitors.

The idea was to protect UK business interests by removing the proprietary barriers powerful software companies use to preclude competitors. This would be likely to promote the interests of smaller UK companies that have been excluded by the dominance of proprietary software providers.