Switzerland’s Federal Act on the Use of Electronic Means to Carry Out Official Tasks, known as EMBAG in German and EMOTA in English, requires federal authorities to publish the source code of software they develop or commission for their official tasks, subject to applicable exceptions. This publication requirement raises practical questions about transparency, licensing and the funding needed to maintain software over time.
The Swiss EMBAG: A Milestone for Open Source
Article 9 concerns software developed or commissioned by federal authorities. It does not impose a blanket requirement that every public sector organisation buy or use only open source software. The Swiss Federal Chancellery’s official guidance distinguishes creating software from using existing products: procurement of existing open source and proprietary software is treated on the same basis.
Publishing source code allows others to inspect, reuse and improve the relevant software under its licence. It does not make the data processed by that software public. Federal authorities remain responsible for implementing the publication requirement and assessing the relevant rights and security considerations.
Financial Viability for OSS Vendors
While the EMBAG is a great move for open-source, ensuring the financial viability of OSS vendors and contributors is crucial. Without a sustainable business model, the growth and development of open-source software could be stifled. OSS vendors need mechanisms to monetize their contributions effectively. This can include offering premium features, providing professional services, and developing partnerships with private and public sector entities.
Public bodies developing or commissioning open source software should recognise that without financial support, these vendors may struggle to maintain and innovate their products. Financial models such as government grants, subsidies, or incentives for using OSS can help bridge this gap, ensuring that OSS vendors are adequately compensated for their work.
The Proprietary Approach: Protecting Business Profitability
The proprietary approach to software development has been instrumental in protecting business profitability and safeguarding intellectual property from plagiarism. Proprietary software allows companies to invest heavily in research and development, knowing their innovations are protected. This model ensures that businesses can recoup their investments and continue to innovate.
For OSS to become more ubiquitous, it is essential to find a balance that protects the interests of proprietary software vendors while promoting the benefits of open source. Hybrid models, where certain components are open-source while others remain proprietary, can provide a viable solution. This approach allows businesses to leverage the collaborative benefits of open source while protecting their core intellectual property.
The Importance of Licensing and Legal Protection
Licensing and legal protection are critical for the sustainability of OSS. Clear, enforceable licenses ensure that the rights of both users and creators are protected. Compliance with these licenses must be mandatory, and legal frameworks should be in place to enforce them.
EMBAG’s source code publication requirement makes licensing, third-party rights and maintenance responsibilities important considerations for commissioned software. More must be done at the state and federal levels to support OSS vendors legally and financially. This includes developing comprehensive policies that protect OSS from misuse and plagiarism, ensuring that vendors can operate sustainably.
Conclusion
Switzerland's EMBAG represents a significant step forward for the open-source movement, setting a precedent for other countries to follow. However, for OSS to thrive, the financial and legal frameworks supporting vendors and contributors must be robust and comprehensive. By addressing these challenges, we can ensure that the benefits of open source; transparency, security, and efficiency are realized without compromising the financial and intellectual property interests of those who develop it.
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