Software Freedom Day 2006

SFD Conference
University of NSW, Sydney

Thank you for having me here today to speak and celebrate international software freedom day! I want to give you an insight into how federal politics and policies impact upon Free and Open Source Software in Australia.

There are three main areas of effect:

• Firstly, the Commonwealth Government as procurer, user and consumer of information technology.
• Secondly, ICT industry development policy and the associated recognition, support and encouragement offered to free and open source software developers, entrepreneurs and businesses.
• And third is the law relating to the creative development and use of free and open source software in the community, with particular reference to Australia’s international obligations.

The Commonwealth’s use of Free and Open Source Software

The Federal Government’s method of procurement of information and communication technology has left a lot to be desired. With the vast majority is now outsourced, the prime matter of political contention has been the method of outsourcing and the impact on local industry development and growth. I will share with you a little history on this.

Early in the current government’s ten years of office, the general approach to ICT procurement sought to reduce costs as its primary objective. The implementation model was driven by the vendors and the effect of this policy was to entrench large multinational corporations across clusters of Commonwealth departments and agencies. Needless to say, this also entrenched their shrink-wrapped solutions and pre-programmed software upgrades for extended periods. The bad news for the Government was that it also cost them a lot more. Every tiny contractual variation became a windfall for the vendor. The expansive use of software licensing meant that as more users were needed – think of the massive expansion of the ATO when the GST was introduced – any economy of scale cost reduction on hardware was offset plus some by the user license conditions. I heard many anecdotes about the actual terms and conditions of some of these cluster contracts that would make taxpayers cry out loud at the waste. Not surprisingly, the government shrouded much of the detail of these massive IT contracts in ‘Commercial in Confidence’ to prevent public scrutiny. This scheme had a general negative effect on local companies and their innovative applications developed in Australia. Even now I know companies that have contracts with government elsewhere, but not here. Predictably, these massive contracts not only locked in hardware suppliers and proprietary software for years, they locked smaller players and open source software out.

This is not peculiar to Australia, with many national governments preferring to be led by the big players in the market in the absence of ICT management and implementation knowledge or experience within their political or bureaucratic leadership. By outsourcing everything, government agencies and departments lost strategic control of their technology. They also lost what corporate knowledge they had within the existing workforce. It seemed the more western and developed a nation was, the more likely they were captured by the outsourcing pitch of the IT multinationals. Needless to say, this centralised form of ICT outsourcing was eventually scrapped by the Commonwealth, and not without some political pain. Unfortunately, greater opportunity for smaller, local companies to tender for government work has been slow to emerge because these massive contracts had five year terms.

Even slower has been the process of government department CIO’s building confidence in local solutions that seem too good to be true. They’ve had to wean themselves off the big end of town and all that goes with a big contract: from the corporate box at the rugby to the false promise that you can’t get sacked for using IBM! This all sounds a bit like a history lesson, but it is contextually important to understanding why the use of open source in the Commonwealth has been so ad hoc.

During this scheme of massive, clustered IT outsourcing contracts, a few agencies worked hard to prevent being rolled up in a cluster. A few of these agencies have, not surprisingly, been the ones to develop open source software or enhanced their use of it. This demonstrates that there were some smart people in IT in the Commonwealth public service who not only grasped the opportunity to innovate using open source, but had the foresight to ensure their agency fended off attempts to be clustered, which gave them the freedom to innovate both in-house and engage smaller, more creative software companies. Since then, many major vendors have jumped on the open source band wagon for fear of being outflanked. I also want to pay tribute to those companies who have cracked the Commonwealth with open source solutions. They have sat a harder test in many ways to be listened to and taken seriously as alternatives to incumbent and legacy platforms.

In that spirit I acknowledge there are many examples of open source being deployed, and I have a few that you may not have heard of that I think are worth a bit of a look.

The links are in my presentation, which I will publish on my web site this evening. Note it is my development site, so forgive the incompleteness: http://katelundy.info

I want to turn first to one of my sentimental favourites: the Australian National Archives. They are one such agency that were small enough not be targeted in the Howard Government’s clustering strategy.

They have been very successful with Xena, an open source application developed in house for the archiving of electronic documents of the Federal Government.

Here is an extract from the Senate Estimates hearings in 2004 that gives you an insight into their story. Senate Estimates is the one time each year that we, the federal opposition, get to ask public servants and the Ministers of the federal Government, how they are spending taxpayers money. It is the primary accountability mechanism we have available to us in the federal parliament.

Wednesday, 26 May 2004
ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS

Senator LUNDY—…. Can you tell the committee what strategies the archive has undertaken to avoid that problem and potential additional expense to the Commonwealth as a result of those proprietary software policies?

Mr Gibbs— The device we are using is XML, which is freeware, and that is the approach we are rolling out across the country, including New Zealand, and trying to get that as the lead standard so that everyone else can use it. When we have it constructed we can make it available across the archival community in Australia. So that is the way we are handling it. It is not proprietorial at all. It is becoming an international approach, for the very reasons you are describing.

Senator LUNDY— Is the software to manage those documents based on open source software?

Mr Gibbs— Yes, it is.

Senator LUNDY— Where was that developed?

Mr Gibbs— Our product, Xena, was developed in Mitchell, Canberra. It is based on other available software; we just packaged other products, but the development has happened here in Canberra.

Senator LUNDY—And is that system now leading the world?

Mr Gibbs— We think it is, yes. The number of times our staff are invited to go around the world to talk about it is some indication that other people think so as well.

Other recent examples of the use of open source in the federal Government include the following. This list is by no means exhaustive, but it will give you a taste of what is going on.

• Geoscience Australian interactive 3D models, (Virtual Reality Modelling Language), an open source language. The 3D models were generated by Geoscience Australia’s research projects to help scientists better understand and interpret their data. They are said to provide a useful interactive tool to communicate often complex geological relationships to other scientists and the wider community.

• CSIRO Manufacturing and Infrastructure Technology uses HYMODOSS software The HYMOD project aims to develop new high-speed parallel processor modules, primarily but not exclusively for machine vision. A second generation of HYMOD processing modules is now under development.

• CSIRO Mathematical and Information Sciences () ‘Analytic Audio Systems conducts research into the analysis of music and sound with much of its work using OSS. The team creates software to unravel the structure and texture of recorded audio, and develops systems which make use of the information extracted. Examples of such systems include searching for music features and indexing soundtracks.

• The Australian Broadcasting Corporation’s podcasting services recommends the download and use of an OSS package such as Juice Receiver. These programs allow you to schedule regular updates to your selected downloads which allow you to listen to podcasts on mobile phones and Pocket PCs, as well as computers running Mac or Linux OS.

• National Library of Australia Digital Object Repository is progressively making information about its digital collections available using the Open Archives Initiative (OAI) protocol for metadata harvesting. This service provides access to metadata describing the Library’s digital collections of pictures, music, maps, manuscripts, books and serials.

   

Government promoting Open Source

I now want to move on to the second aspect of my talk today: How ICT industry development policy and the associated recognition, support and encouragement is offered to free and open source software developers, entrepreneurs and businesses.

First, there are the large suite of industry development programs managed by the Department of Industry Tourism and Resources, including Commercial Ready, and COMET, and access to capital though the Innovation Investment Fund. There is also Digital Content Action Agenda and the Spatial Information Action Agenda.  For the grant-based programs such as Commercial Ready, there is a whole economy of consultants and advisers out there ready and willing to help small companies access these grants for a fee. There is no barrier to access for open source software, success, at least theoretically, depends on commercial potential and technological merit.

But I want to focus on the efforts of the Government to promote FOSS. It has become the hip thing to do. Compare this to say three or four years ago when open source was perceived as radical and disruptive at the political level. Now, it seems Government’s can’t do enough to promote its use.

Take for example the Australian Government Information Management Office’s (AGIMO) own project launched in April last year, described as “a fully documented open source content management system, demonstrating the viability of open source software solutions in the Australian Government” This system is available to Government agencies and not-for-profit groups at no upfront cost.

Through what they call ‘whitebranding’, AGIMO, working with Australian software company squiz.net Pty Ltd, has made a version of the open source MySource Matrix content management system available to Government agencies and not-for-profit groups.

This followed the publication of the The Guide to Open Source Software for Australian Government Agencies, and associated documentation which was developed according to the Minister “to provide decision makers in the Australian Government with quality information to understand, analyse, plan for and deploy open source software solutions,” can be found on the SourceIT web site, along with general guidelines relating to the government procurement of software and services.

It is worth noting that the Government stops short of recommending that Open Source be used where it can meet the service requirements. Note that in his press statement at the time the Minister said in relation to the Guide:

“It does not require Government agencies use open source software. Instead it helps provide a level playing field that supports consideration of all software solutions by government agencies.”

This qualification shows there is still work to be done. While the Government seems to go out of their way to associate themselves with open source policy initiatives, its more about ‘branding’ the government as being up to date. The failure to actually deliver open source into some big agencies at the desktop tells me the procurement system has some maturing to do still.

Even the much celebrated ACT Government Open Source legislation said that it merely had to be considered as an option. Seems like common sense to me! Not that I support legislating for the use of open source. It doesn’t need affirmative action, just decent appraisal and technical analysis. Oh, and a few people in leadership positions that know what they are doing would be helpful!

But it is improving the array of open source operating systems and applications is testimony to the hard work of many who have jumped a higher bar to prove the value of the open source solution and I commend them for their efforts.

There are positive signs for the future too.  The Government Agency AusAID’s Australian Development Gateway site goes a step further. It promotes OSS uptake by developing nation agencies: This site specifically recommends the use of OpenOffice, Koha, free Open Source Library System, Linux OS, Mozilla, Firefox, eNRICH community portal software and many others.

Last but certainly not least I want to mention the Department of Education, Science and Training Open Source Initiative: ASK-OSS.

Australian Service for Knowledge of Open Source Software (ASK-OSS) provides much more than a service for the education, science and training sector. It is a national focal point for everything, form advice, management, governance, storage to dissemination of Open Source Software (OSS) for research and higher education.

Compared to the information and services offered by AGIMO, this web site provides vastly superior information and serves as a critical resource for any agency contemplating open source. A key strength is the partnership arrangements that underpin the project. Partners include Open Source Law, which amongst other things produces the newsletter Oswald which carries current industry news and resources.

Also there is the Open Source Industry Association. OSIA is the national industry body for Open Source within Australia. They exist, in case you have not yet been to their web site, “to further the cause of both Free and Open Source Software (FOSS) in Australia and to help our members to improve their business success in this growing sector of the global Information and Communication Technology (ICT) market.

The outcome of all of these efforts is to stimulate interest, encourage and facilitate access to open source solutions. Make it easy for open source to be market tested fairly against incumbent proprietary solutions. Over time, I hope that by promoting the success stories of the deployment of open source solutions in government, the Commonwealth Government will become a leader in the use of Open Source. In some respects they are, with more examples emerging, but I look forward to the day when a major department or agency deploys, enterprise-wide OpenOffice.

The Commonwealth has a genuine role in developing the market and demanding more from their software solutions and I have long lamented the stupidity of allowing a well resourced market leading them! The irony is that with so many poor decisions made on IT outsourcing in the past, and perhaps still, driven by the need to drive costs down, now that there are far more cost effective and innovative models through open source, I expected far more enthusiasm.

So I wish all power to free and open source software in proving their case. A contract with the Commonwealth Government provides an important reference site.

I would now like to turn to the third issue: the law relating to the use of free and open source software in the community, including international obligations. This does relate to the previous point about industry development because the threat of civil or criminal liability for creators of free and open source software as a result of changes to Australian law, will determine to some degree the ongoing presence of innovators here in Australia.

The Law and Open Source

Many of you will be tracking debate about Technological Protection Measures arising from the Howard Government’s decision to enter into a Free Trade Agreement with the US. This decision required Australian to further legislate with respect to exceptions to the Technological Protection Measures (TPM’s) by 1 January 2007.

I will give you a summary of Australia’s current law, the AUSFTA requirements regarding TPMs, and an outline of the Exposure Draft Bill, which is currently being drafted in order to fulfil Australia’s obligations.

Assuming you are familiar with the term, TPMs are frequently used for the purpose of preventing copyright material from being copied or accessed. They commonly include password, encryption, and DVD region encoding mechanisms. TPMs can be circumvented in several ways, for example, as a result of the unauthorised distribution of passwords and serial numbers, or by employing more sophisticated applications like password cracking tools and software decompilation programs.

The Copyright Act 1968 currently prohibits, amongst other things, the importation, dealing and manufacturing of TPM circumvention devices (s 116A, Copyright Act 1968, for civil liability and s 132(5A) and (5B) for criminal liability). However, the Act does not prohibit the actual use of a circumvention of a TPM. The Copyright Act also provides that the prohibitions relating to the manufacturing and the trafficking of circumvention devices do not apply for certain “permitted purposes” (subsections 116A(3) and (7)).

These permitted purposes include:

• reproducing computer programs to make interoperable products
• reproducing computer programs to correct errors
• reproducing computer programs for security testing
• copying by Parliamentary libraries for members of Parliament
• reproducing and communicating works by libraries and archives for users
• reproducing and communicating works by libraries and archives for other libraries and archives
• reproducing and communicating works for preservation and other purposes
• use of copyright material for the services of the Crown
• reproducing and communicating works etc. by educational and other institutions.

Under the AUSFTA, Australia is required to implement a new liability scheme for circumventing TPMs by 1 January 2007. The current scheme will be repealed and the new law, which will be in the form of amendments to the Copyright Act, will impose civil and criminal penalties, on any person who:

• knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram, or other subject matter, or
• manufactures, imports, distributes, offers to the public, provides, or otherwise traffics in devices, products, or components, or offers to the public, or provides services that:
  • are promoted, advertised, or marketed for the purpose of circumvention of any effective technological measure
  • have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or
  • are primarily designed, produced, or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure.

In short, Australia is required to tighten its law regarding circumvention of TPM devices to prohibit not only manufacturing and dealing but also the actual use of a circumvention device. In addition, the number of exceptions or ‘permitted purposes’ which can be included in the regime are strictly limited according a number of narrow exceptions. The new law required by AUSFTA will replace the “permitted purposes” for which circumvention devices may be dealt with under the current law, with several narrow exceptions.

Those exceptions are set out in the AUSFTA (Article 17.4.7(e)(i) to (vii)) and generally relate to the following categories: 

• reverse engineering for the purposes of achieving interoperability
• security testing of encryption technologies
• parental control locks
• security testing of computers/networks
• privacy issues
• law enforcement and national security
• libraries for making acquisition decisions, and
• other exceptions identified under a legislative or administrative review as addressing a credibly demonstrated actual or likely adverse effect on non-infringing use.

The House of Representatives Legal and Constitutional Affairs Committee inquiry into TPMs held last year was an administrative review for the purpose of this last category: other exceptions.

Many of the submissions to the LACA inquiry noted that the TPM regime required under AUSFTA will shift the existing balance significantly in favour of copyright owners, and against institutional and other users by: 

• Prohibiting use of circumvention, as well as dealing in circumvention devices and services
• Extending the reach of criminal sanctions for both use and dealings
• Allowing exceptions in respect of use of circumvention, but not dealings
• Imposing several criteria on the exceptions which may be granted in that area.

The Exposure Draft of the Bill I will now turn to the Exposure Drafts – Copyright Amendment (Technological Protection Measures) Bill 2006 and related Regulations. The Bill amends the Copyright Act to create new offences for circumventing TPMs and new exceptions to those offences. Key features of the exposure draft bill are: Link to copyright infringement TPMs must be connected with copyright infringement. The scope of the scheme is limited to preventing circumvention of TPMs designed to stop copyright piracy. The scheme will not apply to TPMs solely designed for other purposes, such as market segmentation (eg region coding) or the protection against competition in aftermarket goods (eg spare parts) where the TPM does not have a connection with copyright. New offences: The new scheme introduces civil remedies and criminal penalties where a person circumvents an access control TPM. It also builds on the existing scheme which already provides criminal penalties for dealing in circumvention devices and services. The provisions will provide strong criminal penalties of five years imprisonment and/or fines of 550 penalty units (currently $60,500). New exceptions: As I indicated Before, AUSFTA sets out specific exceptions where dealing, manufacturing and use of circumvention devices can be permitted. The specific exceptions to TPM liability are included in the exposure draft.

The exceptions included in the Bill are for:

• interoperability between computer programs
• encryption research
• computer security testing
• online privacy
• law enforcement and national security, and
• acquisitions by libraries and other related institutions.

Note that these are the exceptions that are specifically allowed under AUSFTA and were not part of the LACA inquiry. This means that in the Bill, the provisions required by the AUSFTA will be met completely. However there are a number of additional exceptions were identified in the LACA inquiry and some of these will be included in Copyright Regulations. The Government proposes to introduce the following additional exceptions for:

• reproduction of computer programs to make interoperable products (as authorised by section 47D of the Copyright Act 1968 in so far as it applies to articles)
• the reproduction and communication of copyright material by educational and other institutions assisting people with disabilities (as authorised by Part VB, Divisions 1-3 of the Copyright Act 1968)
• the reproduction and communication of copyright material by libraries, archives and cultural institutions for certain purposes (as authorised by sections 49, 50, 51A, 110A and 110B of the Copyright Act 1968)
• the inclusion of sound recordings in broadcasts and the reproduction of sound recordings for broadcasting purposes (as authorised by sections 107 and 109 of the Copyright Act 1968)
• access where a TPM is obsolete, lost, damaged, defective, malfunctioning or unusable and a replacement TPM is not provided, and
• access where a TPM damages a product, or where circumvention is necessary to repair a product.

The scope of these exceptions will be clarified in the exposure draft of the Regulations which will be available for comment in the next month. There are important political implications that arise from the government’s decision to place these additional exceptions in regulations rather than the Bill itself. The effect is that it willnot be possible to amend the exceptions. Rather, as regulations, they are implemented by the Minister and then the Parliament only has the opportunity to disallow them within a set period of time. No amending or modification can occur: either the regulations are disallowed , or they are not. Please note that when the Government has the numbers in the Senate, which they do now, it is a moot point. Further review of exceptions But wait, there’s more: The Attorney-General’s Department is conducting a further limited review of the following proposed additional exceptions.

The exceptions to be considered would allow circumvention to gain access for:

• making back-up copies of computer programs
• correcting errors in computer programs
• allowing institutions to assist people with an intellectual disability
• making copies of works for inclusion in broadcasts, and
• making copies of copyright material for criticism, review or news reporting by broadcasters.

According to the Attorney-General’s website, if the need for these additional exceptions is substantiated in the review process, the exceptions will be added to the Copyright Regulations. The Exposure Draft Bill appears to take up many of the recommendations of the LACA report, in providing for certain exceptions in relation to the use of circumvention devices, albeit in the form of regulation, not in the Bill itself. As such, the Bill implements closely the requirements of the AUSFTA regime including some of the practical difficulties with that scheme. For example, the AUSFTA scheme permits the granting of special exceptions for use of circumvention devices but does not permit special exceptions for the manufacture and supply of these devices. This would mean for example, that while a Library or educational institution may be granted an exception to allow it to use TPM circumvention devices (it appears the Regulations will do this) the prohibition on dealing and manufacture may prevent it from acquiring these devices. This would potentially nullify the effect of the exception for use of circumvention devices.

Other major problems likely to be encountered include foreclosure on aftermarkets for goods and services. This impact is potentially anti-competitive and I note the OSIA submitted to the inquiry that the provisions of the Bill ought not override the provisions of Part IV of the Trade Practices Act, which deals with anti-competitive behaviour. This is a reasonable point and worthy of pursuing.

The Open Source Industry Association made several strong points including the exceptions including the effective removal of criminal sanctions for rightful owners of data stored their rightfully owned computer. Without this protection, the capacity to innovate freely, regardless of any interaction the intellectual property of others, is undermined. They also make the excellent point that it would be wise of the Australian Government to monitor the interpretation of the Digital Millenium Copyright Act (DCMA) in the US, as drafting Australian law which is inconsistent with the interpretation of the DCMA will cause a legal nightmare for companies operating in both jurisdictions.

I urge all of you interested in this subject to familiarise yourself with the issues, read this and other worthy submissions to the Inquiry and lobby Government members intensely to ensure the Government continues to expand the list of proposed exceptions via regulations, if not the draft exposure Bill itself. As I said, there is another limited review of the additional exceptions and this in itself presents an opportunity. Good Luck! I will be doing what I can to achieve a better outcome.

On that note, I will conclude – Happy Software Freedom Day everyone!

Tagged: ausfta, copyright, ICT, open source, pair gain, Software Freedom Day