These are the comments that I submitted to Department of Information Technology on the Draft Policy on Open Standards for e-Governance Version 1.1 dated May 2010 <http://egovstandards.gov.in/openstd2>. Overall, it is a good policy with a few loopholes that need to be plugged. If approved in a slightly improved form, it will be a huge landmark for e-governance in India and for the open source and open standards community.
General Review Comments Wonderful is your gift of knowledge the more we share, the more it grows the more we hoard, the more it diminishes Hymn to Saraswati, the Goddess of Knowledge Information Technology, and the Internet in particular, have opened up tremendous avenues for the sharing of knowledge. In the next two years, over two billion people (or one-third of humanity) will be connected to the Internet, making it the largest collaborative network in the history of mankind. Open standards are the most fundamental tool for the sharing of knowledge and we therefore appreciate DIT's leadership in creating the Draft Policy on Open Standards for e-Governance Version 1.1 dated May 2010. In creating and implementing the Open Standards Policy, we hope that DIT will live up to the best of Indian knowledge traditions that placed tremendous emphasis on the sharing of knowledge. While genuine open standards foster the sharing of knowledge, proprietary standards prevent the free flow of knowledge by treating standards as a priced commodity or as trade secrets, owned and controlled by private entities. We hope that DIT will make a clear distinction between open standards and proprietary standards because this has larger implications beyond e-Governance and impacts the information society as a whole. We recognize and respect the fact that DIT has a significant challenge on its hands when it comes to genuine open standards because many standards, currently in use, have evolved as de-facto standards that are proprietary in nature. At the same time, we request DIT to recognize the larger historical perspective, which places standards firmly in the commons; and that proprietary digital standards are an aberration of this norm. It is a well established convention of civil society that standards should be treated as a “common wealth” and belong to all, and NOT be controlled by private entities. If standards that we take for granted – like weights and measures – were proprietary standards that required royalties and OEM licenses for usage, the cost and social impact of the same can well be imagined. For example, multimedia standards are some of the most expensive standards in the world. A complete set of playback plug-ins costs around EUR 28 <https://www.fluendo.com/shop/category/end-user-products/>(approximately Rs 1,624). As we deliver e-government services right down to the village panchayats and seek to put computers in every school, the cost of these proprietary playback plug-ins could prove to be a heavy drain on the country's finances, affect IT penetration in India and thereby hinder the spread of knowledge. On the other hand, open standards can accelerate the sharing of knowledge and the Internet and World Wide Web are the finest examples of this. For example, in 1994, Sir Tim Berners-Lee founded the World Wide Web Consortium (W3C) at MIT. It comprised various companies that were willing to create standards and recommendations to improve the quality of the Web. Berners-Lee made his idea available freely, with no patent and no royalties due. The World Wide Web Consortium decided that its standards should be based on royalty-free technology, so that they could easily be adopted by anyone. It is therefore clear that open standards promote the public good, which is the primary responsibility of any government. The ultimate test of any open standard is – does it give us the freedom to share knowledge without any hindrance, without any terms and conditions? We hope that this is the yardstick that will be used to determine open standards for India. Comments on Specific Sections Section 4.1.2 of the policy states, “ The patent claims necessary to implement the Identified Standard shall be available on a Royalty-Free basis for the life time of the Standard. If such Standards are not found feasible then in the wider public interest, Fair, Reasonable and Non Discriminatory terms and conditions (FRAND) or Reasonable and Non Discriminatory terms and conditions (RAND) with no payment could be considered.” We request that the following statement, “If such Standards are not found feasible then in the wider public interest, Fair, Reasonable and Non Discriminatory terms and conditions (FRAND) or Reasonable and Non Discriminatory terms and conditions (RAND) with no payment could be considered” be moved to the section 4.3 which deals with “Non-availability of Open Standard which meets all Mandatory Characteristics dealing with exceptions.” We strongly feel that this sentence is completely out of place, especially considering that it is currently housed in section 4.1 titled, “Mandatory Characteristics.” We feel that section 4.1.2 is the heart of the Draft Policy and placing an exception statement in the very heart of the policy will send out wrong and conflicting signals. Also, in terms of sequence, the RAND/FRAND clause pre-empts the selection criteria listed in Section 4.4. It should also be noted that standards that are RAND/FRAND should be termed as “Interim Standards” and should NOT be termed as “Open Standards.” For example, the H.264-encoded Internet Video format is currently free to end users until at least December 31, 2015<http://www.mpegla.com/Lists/MPEG%20LA%20News%20List/Attachments/226/n-10-02-02.pdf>. Once this period ends, MPEG LA, the licensing agency for H.264 may start charging royalties. Therefore, H.264 is a partially-royalty free standard, but cannot be considered an open standard because users do not have the freedom to encode and decode data and have to adhere to complex licensing conditions. Under the current wording of Section 4.1.2, H.264 may qualify as a suitable open standard for e-governance but this is clearly unacceptable in the long-term. For example, if Doordarshan uses H.264 to transmit a National Address by the Prime Minister of India over the web on 1st January, 2016, it may attract royalty that “...shall be no more than the economic equivalent of royalties payable during the same time for free television." Therefore, we suggest, once again, that this sentence be moved to Section 4.4 and be modified to read, "If such Standards are not found feasible then in the wider public interest, Fair, Reasonable and Non Discriminatory terms and conditions (FRAND) or Reasonable and Non Discriminatory terms and conditions (RAND) with no payment, AND NO RESTRICTIONS ON REUSE, could be considered.” 4.3 Non-availability of Open Standard which meets all Mandatory Characteristics Given the strategic importance of open source and its ability to free India from being technologically dependent on proprietary software vendors, we request that the open source community should have a strong representation in the Designated Body selecting the standards. We request that the process of selecting these Interim Standards should be an open and transparent process that seeks inputs from the public. Citizens should be clearly explained the logic for selecting these standards. 5. Exceptions for Selecting One or More Additional Open Standard in an Area If multiple standards are selected for a particular area, the government should ensure that data is interchanged without any loss of information. If information is lost in the process of exchanging data, it would defeat the very purpose of having this policy. As with many other policies in India, we are seriously concerned that this exception clause should be used only in the rarest of rare cases and that the exception should not become the norm. Therefore we suggest that this sentence be modified to read as, “Such standard shall be compatible and bi-directionally interoperable, without any loss of data, with the already existing selected Standard.” Going by past experience, we have seen that proprietary vendors who stand to lose their billion dollar monopolies, are willing to do anything possible to exploit every loophole available to them. Therefore, the constitution of the Designated Body is critically important. DIT must ensure that a transparent process is followed to include multiple stakeholders, including civil society in order to prevent institutional capture of the designated body. The constitution of the LITD 15 committee of the Bureau of Indian Standards is an example worthy of consideration. Annexure Section m: Maturity -- An standard is considered mature if different implementations, commercial/open, are available, widely adopted and have been stable for some time. We request that this be reworded to read as, “Maturity -- A standard is considered mature if different implementations in proprietary and open source software, are available, widely adopted and have been stable for some time.” It should be noted that open source software licenses do not differentiate between commercial and non-commercial implementations. The two major development models in the software world are proprietary (where the ownership of the source code is closely held) and open source (where users have the freedom to modify, share and redistribute the source code). Therefore, it would be more accurate to replace the term, “commercial/open” with the term, “proprietary and open source.” A-I-6 Open Source: The term is most commonly applied to the source code of software that is available to the general public with relaxed or non-existent intellectual property restrictions. The definition of “open source” is not accurate. There are specific licensing restrictions on Open Source Software. The purpose of these restrictions is to preserve the users' right to share, modify and redistribute the source code. We therefore suggest that the Open Source Definition <http://www.opensource.org/docs/osd> of the Open Source Initiative <http://osindia.blogspot.com/2010/06/www.opensource.org> be followed. It is the OSI that approves the open source licenses. The Open Source Definition is as under: Introduction Open source doesn't just mean access to the source code. The distribution terms of open-source software must comply with the following criteria: 1. Free Redistribution The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale. 2. Source Code The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed. 3. Derived Works The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software. 4. Integrity of The Author's Source Code The license may restrict source-code from being distributed in modified form *only* if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software. 5. No Discrimination Against Persons or Groups The license must not discriminate against any person or group of persons. 6. No Discrimination Against Fields of Endeavor The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research. 7. Distribution of License The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties. 8. License Must Not Be Specific to a Product The rights attached to the program must not depend on the program's being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program's license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution. 9. License Must Not Restrict Other Software The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software. 10. License Must Be Technology-Neutral No provision of the license may be predicated on any individual technology or style of interface. A-II-6: What is meant by maturity? An Open Standard is considered mature if different implementations, commercial/Open, are available, widely adopted and have been stable for some time. As with Annexure M, we request that the term, “commercial/open” be replaced with “proprietary and open source.” We would also like to suggest the addition of the following sentence, “The date on which the open standard came into existence will be given priority when it comes to making a choice between two competing open standards.” The reason for this is that an open standard that has been in existence longer is likely to be more mature.
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