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Last update: $Date: 2008/03/07 16:35:59 $ UTC
Authored in 2003, links updated in 2008.

Canadian International Trade Tribunal and Free/Libre and Open Source Software

References on weblogs such as OpenSector.org (Link removed - site closed) are mentioning a growing number of governments worldwide that offer policy that helps governments choose Free/Libre and Open Source Software (FLOSS) solutions.

While the government of Canada has not yet offered a public position on the procurement and participation of the Canadian Government in FLOSS projects, there is precedent in this area relating to existing trade law.

It has been 2 years since the Canadian International Trade Tribunal (CITT) case that confirmed that Free/Libre and Open Source Software (FLOSS) and open standards should not only be accepted in Canadian government procurements, but should be favored. Unfortunately too few people who are suppliers of FLOSS solutions, or procurement officers at government departments, seem to be aware of this case.

This is also a good time to be reminded about this case as we are about to see a new release 1.1 of the OpenOffice.org office suite which is a reference information of an OASIS backed international XML standard for office productivity files.

NAFTA Chapter 10 - Government Procurement, states

Article 1007: Technical Specifications

1. Each Party shall ensure that its entities do not prepare, adopt or apply any technical specification with the purpose or the effect of creating unnecessary obstacles to trade.

2. Each Party shall ensure that any technical specification prescribed by its entities is, where appropriate:

  1. specified in terms of performance criteria rather than design or descriptive characteristics; and
  2. based on international standards, national technical regulations, recognized national standards, or building codes.

3. Each Party shall ensure that the technical specifications prescribed by its entities do not require or refer to a particular trademark or name, patent, design or type, specific origin or producer or supplier unless there is no sufficiently precise or intelligible way of otherwise describing the procurement requirements and provided that, in such cases, words such as "or equivalent" are included in the tender documentation.

4. Each Party shall ensure that its entities do not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in that procurement.

In early 2001, one of my clients filed a complaint with the Canadian International Trade Tribunal (CITT). The complaint dealt with a procurement with the Library of Parliament of a media monitoring service, which my client P&L Communications wished to bid on. The source of the complaint was a requirement from the Library of Parliament that the service be implemented on Microsoft Windows NT. P&L Communications argued that this was not a valid technical specification, but a specific brand name, and that this would unfairly discriminate against our offering which was based on Linux and other open standards.

The solution being procured needed only be understood as a "black box" installed onto the corporate network of the Library of Parliament. As an Intranet application server it needed only to conform to recognized standards such as Ethernet, TCP/IP and various W3C standards. While the P&L Communications bid offered a solution based entirely on internationally recognized standards, the Library of Parliament was not willing to accept this bid and wanted to favor a proprietary vendor-dependent solution.

We won the case with the CITT, which was seen by the FLOSS community as a victory for the entire community. In essence we received precedent that stated that government departments are not allowed to specify brand names as a proxy for technical requirements. To quote the decision (CITT File No. PR-2000-073):

... the Library, in setting out the requirements of the RFP, relied extensively on trade names as a proxy for performance specifications, when recognized open standards exist, and introduced unallowable and/or unsupported and non-documented extra support costs for bidders offering non-Microsoft-based solutions, thereby structuring an RFP that favours one class of bidders, those offering Microsoft-based solutions, over the other bidders. In the Tribunal's opinion, this amounts to discrimination.

While this issue dealt with standards-based Intranet applications, the same decision applies to all government procurements that involve technical specifications. This decision will obligate departments in the Government of Canada to procure all software based on recognized international standards, once set.

One such standard that I have been promoting for government use is the OASIS open office XML standard for office productivity files. I have made presentations on Office Suite Productivity in Government which opens the discussion of the public policy advantages of the government using office productivity tools that conform to recognized international standards.

The best way for departments to become familiar with these standards early is to investigate what will become the reference implementation for this standard, OpenOffice.org. Since OpenOffice.org is FLOSS there are no royalty or license fees, and the only expense is staff-time in learning a new suite. Given that this option will be the best choice for many departments with low budgets, any time spent toward early adoption will offer considerable savings.

Current Government of Canada promotion of branded proprietary communications technology

We do have a way to go before there is a recognition of the need to adequately support and promote open vendor-neutral standards in ICT.

One example of the problem can be seen with the Canadian Radio-television and Telecommunications Commission (CRTC) site at http://www.crtc.gc.ca. The CRTC is an independent agency responsible for regulating Canada's broadcasting and telecommunications systems. While they are responsible for regulating telecommunications systems, including mandating standards in telecommunications, they are promoting specific non-standard Information and Communications Technology (ICT) brands on their website.

Many pages on the CRTC site contain the text "Viewing Tools: Special software needed to read non-HTML documents", which then references the page: http://www.crtc.gc.ca/eng/help.htm#read which states (links removed):

How do I read documents that are not .html?

Some of the documents on our site have originated outside the Commission and are in a format other than HTML. These documents may require the use of a special reader.

Documents with a .pdf extension require the use of Adobe Acrobat Reader, available at http://www.adobe.com

Documents with a .zip extension are zipped documents and can be 'unzipped' using Winzip, available at http://www.winzip.com

Documents with a .doc extension are MSWord documents and can be opened with a Word viewer available at http://office.microsoft.com

Documents with an .xls extension can be read using an Excel viewer available at http://office.microsoft.com

Date Modified: 2001-12-04

PDF (Portable Document Format) and ZIP are vendor-neutral published formats. While each has a vendor associated with the published documentation for the file format, there are many tools available for each from multiple vendors, and include FLOSS implementations. I maintain a page http://www.flora.ca/pdf.shtml on my own server to document some of the options available for PDF. The government, rather than promoting specific brands, should make citizens aware of the fact that they have some choice available to them.

DOC and XLS are proprietary Microsoft-branded file formats. The viewer that the CRTC referenced is not software available for free, but optionally installable but bundled features of the Microsoft Windows platform. When the CRTC send people to the http://office.microsoft.com site they are providing free advertising for the products of this single vendor, both in terms of their Operating System monopoly (The viewer only runs on Microsoft Windows) and their Office Suite monopoly (the site is primarily the marketing site for Microsoft Office).

While alternative office productivity, such as OpenOffice.org and GNOME Office, are able to open and save documents in DOC and XLS format, this is not reason enough for a Government of Canada to promote these branded file formats. These file formats are not open vendor-neutral file formats, and can and do change with each new version of Microsoft Office. Deliberate incompatibilities in Microsoft Office file formats are a well known marketing tactic of Microsoft used to encourage people to abandon existing software to upgrade to the latest version of their product.

Any compatibility that third party office suites have with DOC and XLS are also accomplished through reverse-engineering the file formats. This is an action that has historically been recognized as a protected right. This right has come under attack by specific vendors promoting protectionist policy in copyright reform through "Legal protection for Technological Protection Measures", interface copyright, and software patents.