Public funding for open source software: Bern adapts its legislation
The government of the canton of Bern wants to promote the release of open source software. The canton's new ICT ordinance explicitly allows the release of OSS. True to the maxim that publicly funded software should also be made publicly available. This should also reduce the dependencies on IT providers.
The Office for Information Technology and Organisation of the Canton of Bern (KAIO) will soon publish open source software. This is a stage victory in the long-standing commitment of a broad alliance of stakeholders, according to a communiqué from the parliamentary group Digital Sustainability Parligi. The group advocates the publication of software under an open source licence.
Parligi championed the cause back in 2011 when the federal court struck down the Business management software OpenJustitia released under an OSS license. and came under fire from proprietary solution providers for doing so. This led to the submission and adoption of the bipartisan Motion 2013.0783 "Exploiting synergies in the use of software in the Canton of Berne". in the Bernese Grand Council by the EVP Grand Councillor Marc Jost.
After that, another hurdle had to be overcome: To examine the admissibility under competition law of a publication by the state as the author of the software. Parldigi welcomed the publication of the KAIO in 2017. Expert opinion by Prof. Dr. Tomas Poledna and Prof. Dr. Simon Schlauri in this regard. The legal experts came to the conclusion that the publication and provision of OSS could hardly ever be considered a serious interference with economic freedom:
No free campaign
"OSS is not a marketable free service that makes it impossible for private competitors to do business. For from the customer's point of view, it is not only the cost of the code (which is naturally omitted in the case of OSS) that is relevant, but the entire cost of software operation (incl. customisation and integration, support, maintenance, etc.) and also other competitive parameters, in particular quality, range of functions, user-friendliness or ancillary services.
OSS is, in other words, open source, but not free of charge. Accordingly, in practice there is regularly room for private economic activity, and there can be no talk of de facto crowding out." (Poledna/Schlauri 2016: 3)
With the anchoring in the ICT ordinance of the canton, the mandate from motion 2013.0783 can be fulfilled. Councillor Marc Jost is pleased: "After five years, the legal foundation has finally been laid for the canton to fully exploit the many advantages of the open source approach. Now nothing stands in the way of cantonal IT exploiting synergies and sharing costs with other municipalities." The commitment is having an impact: concrete projects are now being published as OSS or are in the planning stage, such as the government application Ki-Tax.
The government council seems to have convinced itself of the advantages of open source software: Through widespread use, security and stability can be tested more thoroughly by the community of users and developers, and dependencies on specific suppliers and products can be reduced. And the positive scaling effects (develop once, use several times) are particularly useful for publicly funded software.
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