As part of its Digital Single Market strategy, the European Commission has unveiled "plans to help European industry, SMEs, researchers and public authorities make the most of new technologies." In order to "boost innovation," the Commission wants to accelerate the creation of new standards for five buzzconcepts: 5G, cloud computing, internet of things, data technologies, and cybersecurity.

The key document is one entitled "ICT Standardisation Priorities for the Digital Single Market," which says: "Open standards ensure ... interoperability, and foster innovation and low market entry barriers in the Digital Single Market, including for access to media, cultural and educational content." The word "open" occurs 26 times in the document, and is also frequently found in the other "communications" just released by the European Commission: on digitising European industry (9 times), and on the European Cloud Initiative (50 times).

"Open" is generally used in the documents to denote "open standards," as in the quotation above. But the European Commission is surprisingly coy about what exactly that phrase means in this context. It is only on the penultimate page of the ICT Standardisation Priorities document that we finally read the following key piece of information: "ICT standardisation requires a balanced IPR [intellectual property rights] policy, based on FRAND licensing terms."

It's no surprise that the Commission was trying to keep that particular detail quiet, because FRAND licensing—the acronym stands for "fair, reasonable, and non-discriminatory"—is incompatible with open source, which will therefore find itself excluded from much of the EU's grand new Digital Single Market strategy. That's hardly a "balanced IPR policy."

The problem for open source is that standard licensing can be perfectly fair, reasonable, and non-discriminatory, but would nonetheless be impossible for open source code to implement. Typically, FRAND licensing requires a per-copy payment, but for free software, which can be shared any number of times, there's no way to keep tabs on just how many copies are out there. Even if the per-copy payment is tiny, it's still a licensing requirement that open source code cannot meet.

That de facto exclusion of open source from this major new EU initiative is shocking, but not entirely unexpected. The European Commission has been steadily moving to marginalise open source for over a decade.

In 2004, the EU brought out the European Interoperability Framework (EIF) for pan-European e-government services. Like the new ICT Standardisation Priorities, the EIF aimed to improve compatibility across the EU by laying down basic requirements for software. Here's what it had to say on open standards:

To attain interoperability in the context of pan-European eGovernment services, guidance needs to focus on open standards. The following are the minimal characteristics that a specification and its attendant documents must have in order to be considered an open standard: The standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.).

The standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee

The intellectual property—i.e. patents possibly present—of (parts of) the standard is made irrevocably available on a royalty-free basis.

There are no constraints on the re-use of the standard.

Royalty-free licensing—strictly speaking "restriction-free licensing"—does not require any payments, and therefore is fully compatible with open source (and with proprietary code, of course). Levelling the playing field in this way did not go down too well with certain large companies that sold closed-source software, and intense lobbying pressure was brought to bear on the European Commission to change its stance. In 2010 it capitulated and brought out EIF version 2, which included the following definition of "openness":

The level of openness of a formalised specification is an important element in determining the possibility of sharing and reusing software components implementing that specification. This also applies when such components are used for the establishment of new European public services. If the openness principle is applied in full: All stakeholders have the same possibility of contributing to the development of the specification and public review is part of the decision-making process;

The specification is available for everybody to study;

Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software.

That's a clear step back from an unequivocal requirement for royalty-free licensing in the first version of EIF. The move from royalty-free to FRAND has now been completed by the EU's new "ICT Standardisation Priorities"—effectively version 3 of EIF—and with it, the certainty that EU standards can be implemented in open source disappears.

The fact that this is not a move in tune with the wider digital world can be gauged from the following, which comes from the Patent Policy document of the World Wide Web Consortium (W3C):

In order to promote the widest adoption of Web standards, W3C seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Subject to the conditions of this policy, W3C will not approve a Recommendation if it is aware that Essential Claims exist which are not available on Royalty-Free terms. To this end, Working Group charters will include a reference to this policy and a requirement that specifications produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and the Consortium.

Nor is the W3C alone in requiring royalty-free licensing for its standards. In 2012, the UK's Cabinet Office published its "Open Standards Principles," the result of another long and bitterly-contested process. The updated version from September 2015 contains the following requirement for a standard to be open:

Rights essential to implementation of the standard, and for interfacing with other implementations which have adopted that same standard, are licensed on a royalty free basis that is compatible with both open source ... and proprietary licensed solutions. These rights should be irrevocable unless there is a breach of licence conditions.

Ars has asked the European Commission for comment on its decision to use FRAND, rather than a royalty-free approach. We'll update this story when the EC responds.

The European Commission's retrograde step is presumably the result of yet more lobbying—some companies never give up. What's truly regrettable is that the proposed new Digital Single Market standards will not only fail to foster the hoped-for innovation from local companies, but will see the region's high-tech sector become even more in thrall to the US giants that will be able to use their big patent portfolios and FRAND licensing to threaten and throttle innovative open source startups from the EU.