As everyone should know, the Trade in Services Agreement (TiSA) is a trade agreement currently being negotiated by 24 members of the World Trade Organisation (WTO), including the EU. Procuring software will be covered by TiSA. The European Commission negotiates on behalf of the EU. TiSA is based on the WTO's General Agreement on Trade in Services (GATS) and together, involved countries account for 70% of world trade in services.
Tisa talks are based on proposals made by the participants, but miss transparency, as they are not carried out in public and documents are available to participants only. Of course, there have been a few leaks of the various negotiating documents, and recently, WikiLeaks released an updated draft, including its e-commerce annex.
As it was explored in a recent article and highlighted by prof. Lawrence Rosen in the Open Source Initiative licence review group, there are some fears that TiSA agreement might outlaw governments from mandating open source software, for example in public procurement requirements.
It was ruled by European case law and in particular by the Italian supreme court (Corte Costitizionale, 22 March 2010) that the preference for open source software is a valid requirement when present and motivated in public procurement specifications, because it is a preference for a legal regime and not for a specific technology, provider or product.
But one clause, found in the leaked version is troubling, since it opens the way for effectively banning governments from requiring open source software. This is article 6 in the latest draft, as proposed by Japan under the title “Transfer or Access to Source Code”:
No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory.
At first glance, the proposed text looks reasonable from the point of view of a commercial provider of proprietary software, who doesn't want to have to cough up its source code to a government just to win a grant.
But, if that language stays, a consequence could be that any government that ratifies the agreement could not then do something like mandating the use of open source office products or including in public procurement specifications that a provided specific solution must be open source, because of legitimate reasons like opening the maintenance and support market, avoiding vendor locking situations or ensuring better security through code transparency.
It looks therefore important to react and for ensuring that EU government and public authorities may still escape to vendor-locking situation and keep the freedom to procure according to the OSOR/Joinup “Guideline on public procurement of Open Source Software”.