New European Commission decision on open source software

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On December 12, 2021, the European Commission adopted the long-awaited “Decision on open source licensing and re-use of Commission software”. This decision is part of the new Free Software Strategy 2020-2023 of the Commission, which itself completes the large-scale program European Commission Digital Strategy and the Digital Europe Program. With its adoption, the Commission concluded to further engage in the use and production of FOSS and to strengthen its involvement with the FOSS community.

The decision in question aims to facilitate the above objectives by establishing a comprehensive set of rules concerning the re-use of software for which the Commission holds the intellectual property rights as open source software (which will no longer require a special decision) and the contribution of its software developers to open source projects. These rules pave the way for a less bureaucratic, more committed and targeted management of the Commission with free software.

The purpose of this article is a compact but comprehensive overview of the most vital parts and a brief assessment of the decision. It will begin with the examination of Articles 1 to 4, which establish the basis of this legal framework.

Application fields

Although the title of Article 3 “General principle” and the somewhat confusing wording of Article 10 “By way of derogation from the general principle of Article 3” may suggest otherwise, recital (5) of the fore The wording and wording of Article 3 itself make it clear that this Decision does not create any obligation for the Commission to make its software available under an open source license. Simply, it effectively creates the legal basis on which the Commission can exercise its discretion to freely distribute its software.

As regards the scope of the rules laid down in Article 3, the Decision adopts the widest possible scope: as indicated in Articles 1, 2 and recital (10), these rules apply to virtually all software for which the Commission holds the intellectual property rights, whether in production, already produced and in use, or to be produced in the future. However, Article 4 excludes a wide variety of software, including software that “would constitute an actual or potential risk to the security of information secrets” or software the publication of which could potentially threaten “the public interest” or “the privacy and integrity of an individual”. For the last 2 categories, article 4 refers to article 4 of Regulation (EC) 1049/2001.

Licensing procedure and license of choice

Licensing of software under an open source license will commence after a three-step process described in Section 8 which aims to ensure that the software is suitable for release according to the criteria set out above. Section 5 describes arguably the most important part of the licensing process, choosing the applicable open source license. Here, a general rule for European Union Public License (EUPL) preference is defined. The (EUPL) is a so-called “strong copyleft” license, which aims to guarantee that this software and its derivatives will remain open source. A derogation from this rule can only be justified when the intellectual property rights of third parties make the use of another license legally necessary or when concrete reasons (which are not defined in the decision) prove that another license standard open source is more appropriate. At the end of this procedure and after the green light of the license of the software under open source license, the source code of the software is stored in the repository mentioned in article 6, which aims to serve as a “one-stop shop” for all of the Commission’s open source software.

Choosing the European Public License (EUPL)

It should be noted that the European Commission continues to implement and promote the use of its own EUPL, a license which aims to ensure that the software will remain open source, regardless of where it is implemented. In the personal opinion of the author, this choice is not without importance. This indicates the Commission’s commitment to its already established approach and mindset regarding free software. A strict approach that aims to strengthen open source software by applying positive measures and “locking” it in an open source state, rather than encouraging the commercial company to adopt it.

However, adopting the EUPL as the default license could prove to be the Achilles heel of the decision. A “strong copyleft” license such as this may cause (in)compatibility problems with other “strong” (or in some cases even “weak”) copyleft licenses, for example with GPLv2.0. Moreover, a significant number of companies are reluctant to use or even completely exclude the use of software under “strong copyleft” licenses, in particular when they intend to integrate this software into commercial products. The above may result in a significant handicap in the adoption and use of Commission software by a considerable portion of the business community.

Conclusion

This brief presentation concludes what is known so far about the “Decision on open source licensing and reuse of Commission software” since its short existence does not allow more concrete conclusions to be drawn on its impact. . However, we could already say that the European Commission has made its support and vision for free software clearer than ever. Such a vote of confidence from a major European organization can inspire more and more companies to not only rely on open source software but to contribute to it, thus evolving the software itself in the community. Apart from that, the fact that an organization with the resources and technical capacity of the European Commission is committed to contributing to community software can only be seen as a step forward, also for the credibility of open source software. .

Closer monitoring of the implementation of the decision could prove of great interest, especially for the particularization of the broad and somewhat vague exceptions of its scope and the perception of the choice of the default license by developers and the business community. We advise our clients – developers using open source software as well as companies implementing software including open source software in their own products – and help them identify relevant issues, covering them in the respective contracts or any other issues. that may arise regarding the above stated matter or other matters related to FOSS.

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