Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

FIFTEENTH CONGRESS
First Regular Session

HOUSE BILLNO. __ 1011

Introduced by Reps. TEODORO A. CASINO and NERI JAVIER COLMENARES

EXPLANATORY NOTE
‘The era of Free/Open Source Software (FOSS) has come.

Once considered the realm of geeks, computer experts and cyberspace activists, FOSS is now
steadily gaining ground among a broad range of information and communications technology (ICT)
consumers ~ from home users and barangays, schools to large corporate enterprises and
government agencies ~ who are looking for alternatives to the expensive, overbearing and restrictive
products of proprietary software monopolies like Microsoft, Unix and Adobe, among others.

Unlike proprietary software, FOSS is cheap (in fact, most FOSS are distributed gratis to the public
by their own developers and can be freely distributed), flexible and development-friendly (FOSS
source codes are accessible to consumers who may study, modify and customize the software),
interoperable (FOSS adheres to open standards and are meant to work across various platforms
and protocols), and safe (the opening of the source codes and the use of open standards have
allowed hundreds of thousands of users around the globe to serve as a virtual research and
development team, providing patches and solutions to bugs and glitches in real time over the
internet).

‘Today, most widely-used proprietary softwares have equivalent FOSS which is cheaper, safer and
more robust. This is why the use of FOSS is steadily gaining ground in many countries in Europe,
North America, Latin America and Asia.

FOSS give software users freedom — the freedom to run the program in any way one wishes, to
study and modify its source codes, to make copies and distribute them as one wishes, and to
redistribute the said program.

An apparent benefit of FOSS is its low cost. Giant chip maker Intel reportedly saved $200 million
for switching their servers from proprictary UNIX software to open GNU/Linux software, while
Amazon reported a US$17 million savings for migrating from Microsoft to GNU/Linux.

Many organizations and several studies have shown that using FOSS in lieu of proprietary software
results in significant savings of anywhere from 15% to 35% over a span of three years not only due
to lower licensing costs but lower personnel and hardware costs.

‘A study produced by the International Open Source Network (JOSN) and United Nations
Development Program - Asia-Pacific Development Information Programme have identified the
following strategic benefits of FOSS: (1) Developing local capacity industry; (2) reducing



imports/conserving foreign exchange; (3) Enhancing national security; (4) Reducing copyright
infringements; (5) Enabling localization.

The study also identified economic benefits as: (1) Increasing competition; (2) Reducing total cost of
ownership; (3) Enhancing security; (4) Achieving vendor independence.

Add to this the social benefit of increasing access to information, promoting citizens’ knowledge
about software and software techniques, encouraging cooperation among the citizenry, and
providing the public with democratic control over the software that it uses,

In fact, the viability and advantages of FOSS has not been lost on us Filipinos. The Advanced
Science and ‘Technology Institute of the Department of Science and Technology (ASTIDOST) has
developed the Bayanihan Linux, a complete desktop solution for office and school use based on
GNU/Linux, and Bayanihan Linux Server, an easy-to-use GNU/Linux server for government
agencies, schools and SMEs. These Bayanihan Linux programs can do everything that proprietary
operating systems can do, except drain one’s pockets, mainly because they are distributed by their
developers for free.

Exist, a 100%-owned Filipino open-source software company was recently awarded the prestigious
Red Herring award for the top 100 start-up technology companies. This is proof that given the
opportunity and proper support, Filipino companies can be a major supplier in the growing global
FOSS market.

This bill, which mandates the use of FOSS, open standards and open formats in all government
agencies, and which encourages the use and development of FOSS in the private and public sectors,
‘will benefit the Philippines by: (1) Promoting the people’s right to access public informations; (2)
Lowering the overall cost of ICT in the public and private sectors by reducing the country’s
dependence on proprietary software and computer applications; (3) Making ICT more accessible to
4 greater number of users; (4) Unlocking the potential and encouraging the development of a self-
reliant, genuinely Filipino IT industry; and, (5) Providing greater security for highly sensitive
government and private information systems.

In view of the foregoing, passage of the bill is earnestly sought.

Approved,

OCevsye—
‘EODORO A. CASINO.

Bayan Muna Party-list



Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

FIFTEENTH CONGRESS
First Regular Session

HOUSE BILLNO. ___ 1014

Introduced by Reps. TEODORO A. CASINO and NERI JAVIER COLMENARES

AN ACT
PROMOTING THE DEVELOPMENT AND USE OF FREE/OPEN SOURCE
SOFTWARE (FOSS) IN THE PHILIPPINES, AMENDING RA 8293 OTHERWISE
KNOWN AS THE “INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES”,
PROVIDING PENALTIES THEREOF, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Short Title. ~ This ct shall be known as the “Free/Open Source Software
(FOSS),Act of 2010.

SECTION 2. Declaration of Policy. ~ In accordance with Section 24 of Article II of the
Constitution which declares that: “Ihe State recognizes the vital role of communication and
information in nation building”, and recgnizing the wide discrepancy between the technologies of
developing countries and advanced countries; realizing the economic limitations in the information
and communication technology (ICT) of developing countries, especially on the viability of
purchasing and implementing expensive software solutions; aur of the telatively slow diffusion of
technology between the developed and developing countries; it is hereby declared the policy of the
State to:

1, Ensure the self-reliance of the State in technology and technology capabilities, in accordance
with Article XIV, Sec. 10 of the Constitution, by ensuring that the State has access to the
source codes of its computers’ software;

2. Strengthen the public’s access to information and government data, in accordance with
Article III, Section 7 of the Constitution, by mandating the use of open standards and
formats in government, hence ensuring the interoperability of data and government
communications;

3. Promote the preferential use of domestic material and Filipino labor in information
communications technology, in accordance with Article XII, Sec. 12 of the Constitution;

4. Adopt mechanisms to ensure fiscal discipline in the purchase of software without
compromising the State’s security and the stability and robustness of the country’s ICT.
infrastructure, and;

5. Develop Filipino professionals and scientists in the field of software technology and ICT by
promoting the use and purchase of free/open source software, in accordance with Article
XII, Sec. 14 of the Constitution.


SECTION 3. Definition of Terms. ~ For purposes of this Act, the following terms and phrases
are so defined:

Source code — The set of human readable instructions and statements written by the programmer
using a particular programming language, including the modules, components of the executable
program, and any interface definition files and scripts used to compile and install a program.

Interoperability — ‘The ability of information systems to operate in conjunction with each other
encompassing protocols, hardware software, application, and data compatibility layers. In particular,
itis the ability of different types of computers, networks, operating systems, and applications to
work together effectively, without prior communication, in order to exchange information in a
useful and meaningful manner.

Open standards ~ Those standards, protocols, specifications, and any other data formats made
available to the general public and are developed, approved and maintained via a public,
collaborative, transparent and consensus-driven process. In addition, open standards must meet all
of the following criteria:

1, The adoption and development of the standard includes the consideration of and response
to inputs by interested parties, and occurs on the basis of an open decision-making
procedure available to all;

2. , The standard has been published and the published document is available freely. It must
be permissible for all to copy, distribute and use it without any fee;

3. The standard is affirmed by an international standards development organization (SDO)
of, in the absence of such affirmation, at least by a government-commissioned SDO}

4, The standard is vendor neutral and allows for sufficient development of a variety of
‘competing interoperable products or services, and;

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

Open Format — A published specification for storing digital data that is based on and employs open
standards, and which are implementable by both proprietary and free-open source software.

Free-Open Source Software (FOSS) ~ Any software computer program that meets all of the
following criteria:

1, The source code of the software, including the source code for such other parts and
components needed to compile and install the software shall be readily available and
accessible;

2. The license to use the program does not restrict nor require fees such as royalties from
anyone to redistribute, in any way, the program as part of an aggregate software distribution
or solution containing other programs from several other sources;

3. The license must allow modifications and derived works which, as specified in Paragraph 4.2
of this Section, must allow for redistribution without additional charges;

4. The license to use must not discriminate against persons nor a specific group of persons;


5. The license of the program shall not be restricted to it being part of a particular software
distribution, hence, individual components of an aggregate solution can be modified and
redistributed in accordance to Paragraphs 4.2 and 4.3 of this section;

6. A software license must not restrict other software from being used as part or in cooperation
with the FOSS. Hence, the license of the open source software can be used in conjunction
with proprietary software, and;

7. The license must be technology neutral. No foreseeable/deliberate restrictions should be
placed regarding the use of the software in any platform, or for any purpose.

FOSS License ~ any license and/or end-user agreement that ensures free access and redistribution
of free/open source software, the licenses of which are generally approved by an internationally
recognized FOSS advocate body.

Total Cost of Ownership (TCO) ~ covers all the costs involved in a technology or business
solution, including the initial investment cost and maintenance, support, replacement, training and
upgrade costs.

Government — includes the three separate branches of government and all departments, bureaus,
offices and agencies operating under each separate branch of government, including schools and
government-owned and controlled corporstions.

SECTION 4. Legal Recognition of FOSS, ~The government shall recognize the validity and
legitimacy of FOSS and FOSS licenses, subject to the provisions of existing laws, rules and
regulations.

SECTION 5. Government Rules and Policies on the Use and Adoption of Open Standards
and FOSS in Government.

1. Use of Open Standards — The government shall use only ICT goods and services that
comply with open standards except under extraordinary circumstances as defined in Section
5.5 of this Act;

2. Use of Open Formats Ail government communication and data intended for public
consumption shall be encoded in open standard data format;

3. Use of FOSS~ The government shall apply only FOSS or FOSS solutions in all ICT
projects and activities except undet extraordinary circumstances as defined in Section 5.5 of
this Act;

4. Use of RAND License for Open Standards ~ Open standards licensed under
“Reasonable and Non-Discriminatory” (RAND) terms, and hence are not free but are
available for a reasonable fe shall be used only under extraordinary circumstances as
defined in Section 5.5 of this Act;

5. Extraordinary Circumstances ~The Commission on Information and Communications
Technology (CICT), through the Office of FOSS Migration created under Section 15 shall
determine, through public hearing, whether there exists extraordinary circumstances that
will exempt a government agency or project from Sections 5.1 to 5.4 of this Act.

Extraordinary circumstances exist when:


a) There is no reasonably available ICT goods or services supporting open standards
and/or FOSS in the field, area or activity that the government intends to engage in,
or;

b) A particular government agency or office has an existing , widely-used and widely
implemented proprietary ICT system and there are no reasonably available
technology using open standards and/or FOSS that can be used with the said
proprietary system.

6. Limitations on the Use of Proprietary Standards and Software in Government -
Should there exist extraordinary circumstances as enumerated in Section 5.5 of this Act, the
government may use proprietary standards and software subject to the following conditions:

a) The state shall procure, purchase or acquire only ICT goods and services that are
interoperable and scalable with open standards;

b) The state shall procure, purchase or acquire available software that offers license
most similar to FOSS as defined in Section 3 of this Act, and;

©) Open standards and FOSS will be selected and given preference when existing
systems are to be retired or need major enhancements.

SECTION 6. Adoption of FOSS Policy in Government Research and Development. — All
software developed by government must be FOSS and open standards compliant except in exigent
circumstances where national security may be in peril, or in such other case where the right to
freedom to public information is reasonably controlled as provided for by law. In case of exigent
circumstances, government shall release under a FOSS license for public consumption said software,
system and ICT goods and services when it is to be retired or replaced.

SECTION 7. Provision Against Single Vendor Lock-in and Dependence. Under no
circumstances shall the government acquire ICT goods and services that are restricted for use in a
single vendor environment only. All prospective ICT investments of the government shall comply
with open standards. Existing ICT systems will be reviewed for open standards compatibility and
will be enhanced to achieve open standards compatibility when appropriate.

SECTION 8. Preference in Procurement of ICT Services and Goods. ~ In case there is more
than one company that offers FOSS and open standard compliant solutions to the government with
almost equal total cost of ownership, preference shall be given to the Filipino-owned ICT company.

SECTION 9. Promotion of FOSS and Open Standards in Educational Institutions.

1. ‘The government, through the Commission on Higher Education (CHED), Department
of Education (DepEd), the National Computer Center (NCC), the Department of
Science and Technology (DOST) and other appropriate agencies shall promote FOSS by
providing laboratories, organizing competitions, and encouraging research, thesis and
dissertations on FOSS development and the development of open standards;

2. Within eight (8) months after this Act takes effect, DepEd, DOST, CHED and the
‘Technical Education and Skills Development Authority (TESDA) shall spearhead the
formulation and implementation of a cusriculum for training students and teachers on
the use and development of FOSS in all levels of education. ‘They will also formulate in
cooperation with the CICT and other appropriate agencies, a basic government


retraining and certification program for existing IT professionals to test their
proficiencies and skills in implementing FOSS solutions.

3. Higher educational institutions that offer professional certification programs on the use
and implementation of proprietary software and solutions will be encouraged to offer
similar certification programs for FOSS and open standard solutions.

SECTION 10. Promotion of FOSS and Open Standards in the Private Sector._‘The
government shall provide various types of non-fiscal incentives and support to private sector entities
involved in the use, promotion and development of FOSS and open standards.

SECTION 11. Amending Section 22 of RA 8293, otherwise known as the “Intellectual
Property Code of the Philippines”.

Sec. 22 of RA 8293 otherwise known as the Intellectual Property Code of the Philippines is
hereby amended to read as follows:

Section 22. Non-Patentable Inventions. The following shall be excluded from patent protection:
22.1, Discoveries, scientific theories and mathematical methods;

22.2. Schemes, rules and methods of performing mental acts, playing games or doing
business, and programs for computers;

22.3. Methods for the treatment of the human or animal body by surgery or therapy
and diagnostic methods practiced on the human or animal body. This provision
shall not apply to products and composition for use in any of these methods;

22.4, Plant varieties or animal breeds or essentially biological process for the
production of plants or animals. This provision shall not apply to micro-
organisms and non-biological and microbiological processes.

Provisions under this subsection shall not preclude Congress to consider the
enactment of a law providing sui generis protection of plant varieties and
animal breeds and a system of community intellectual rights protection:

22.5. Aesthetic creations; [and]

22.6. COMPUTER PROGRAMS, TECHNIQUES AND METHODS IN
COMPUTING AND ARRANGING DATA FOR USE IN DIGITAL FORMAT,
INCLUDING ALGORITHMS;

22.7. PROTOCOLS, SPECIFICATIONS, METHODS OF ARRANGING

DATA THAT ARE KNOWN TO FORM PART OF OPEN STANDARDS OR
ARE INTEGRAL TO IMPLEMENTATION OF OPEN STANDARDS, AND;

22.8. Anything which is contrary to public order or morality.


SECTION 12. Penalties. — Any act or omission on the part of any public official(s) and/or
individuals , juridical or otherwise , acting in conspiracy with public officials violating provisions of
this Act shall be penalized in accordance with pertinent provision(s) of RA 3019, otherwise known
as the “Anti-Graft and Corrupt Practives Act as Amended’, “The Civil Service Law as Amended” or both
whichever is applicable.

SECTION 13. Implementation. — The Commission on Information and Communications
Technology (CICT) shall be the main government agency tasked to oversee the implementation of
this Act. Within six (6) months after this Act takes effect, the CICT shall:

1. Submit to the Office of the President and to Congress an audit of all existing government
ICT systems, and its recommendations as to system migration and changes needed to fulfill
the objectives of this Act;

2. Come up with implementing rules and regulations for this Act which shall include as
minimum the following:

a) Within three years, 90% of government ITT professionals, and 65% of the country’s
IT professionals must be proficient in the implementation of FOSS systems, and;

b) Within five years, 75% of all existing government systems shall be open standards
compliant, and all government communication and research data intended for public
consumption and access shall be in open standard data format;

©) Within five years, 75% of all existing government systems shall employ FOSS. To be
qualified as compliant to this Act, one machine is counted as employing FOSS when
at the minimum, its operating system, and the computing programs used to fulfill the
purpose of the machine (e.g,, office suite programs for machines intended for office
use, or counting programs for counting machines) are FOSS.

d) The effective advocacy, training and development of a FOSS community in the
country that will help in the development of FOSS programs and in the advocacy of
FOSS.

SECTION M4. Amending EO 269, Promulgating Additional Mandate to the CICT.~To
successfully implement provisions of this Act, the mandate of CICT shall now include the following:

1. Catalogue, compile and publish all existing international open standards applicable to the
Philippines;

2. Pending applicable international open standards for the Philippines, the CICT shall
spearhead the development of open standards for the country in the process ensuring the
participation of Philippine ICT professional organizations, non-government organizations
and other stakeholders in the creation of such;

3. Ensure the compliance of all government agencies to this Act, and;
4, Encourage private entities to adopt systems and solutions compliant with open standards.
SECTION 15. Creating the Office on FOSS Migration. ~ There shall be created an office on

FOSS migration to be headed by a known FOSS advocate with at least ten years of experience in the
field of ICY and FOSS. Such office shall be an attached agency of the CICT with its head receiving


compensation, benefits, privileges and other emoluments equivalent to a Commissioner of the
CICT.

The new office thus created shall have the following mandate, duties, powers and
responsibilities:

1. Bnsure the efficient, prompt and successful migration of all government ICT goods and
services to FOSS as mandated in this Act and its IRR;

2. Determine, upon request of a government agency, if there exists extraordinary
circumstances enumerated in Section 5.5 of this Act that will exempt a particular project or
ICT implementation from Sections 5.1 to 5.4 of this Act;

Review and ensure the compliance of all government agencies to pertinent provisions of this
Act;

4, Train and develop human capital for FOSS in the Philippines;

5. Coordinate with the DOST, National Computer Center (NCC) and other government
agencies, State Universities and Colleges, for modification, customization and development
of FOSS for government use;

6. Aid in the prosecution of public officials and individuals, juridical or otherwise, acting in
conspiracy with government officials in refusing to implement provisions of this Act;

7. Create its own sub-offices, hire staff including programmers for modification, improvement
and development of existing FOSS, and seek the services of consultants to aid in its mandate
and successful implementation of this Act, and;

8. Disburse funds thereof for its operations.

SECTION 16. Appropriations. —‘The sum of twenty million pesos (P20,000,000.00) shall be
allocated for the CICT for the implementation of its new additional mandate, and another fifty
million pesos (P50,000,000.00) for the creation and operations of the Office of FOSS Migration for
the first year this bill is enacted into law. Appropriations for the implementation of this Act for the
succeeding years shall be included in the General Appropriations Act

SECTION 17. Repealing Clause — Section 22 of RA 8293 otherwise known as the “Intellectual
Property Code of the Philippines” is hereby amended in accordance to Section 11 of this Act.
Allother laws, presidential decrees, executive orders, and rules and regulations, o parts thereof
inconsistent with the provisions of this Act are hereby repealed, modified or amended accordingly.

SECTION 18. Separability Clause ~ If any section ot provision of this Act is held
unconstitutional oF invalid, the validity of other sections herein shall not be affected thereby.

SECTION 19, Effectivity — this Act shall take effect fifteen (15) days after its publication in the
Official Gazette or in at least two (2) newspapers of general circulation.

Approved,