On December 12th, 2021, the European Commission adopted the long-awaited “Decision on the open source licensing and reuse of Commission software”. This Decision is part of the overall new Open Source Software Strategy 2020-2023 of the Commission, which itself complements the broadscale European Commission Digital Strategy and the Digital Europe programme. With its adoption, the Commission concluded to engage further with the usage and production of FOSS and to strengthen its involvement with the FOSS community.
The Decision in question aims to facilitate the aforementioned goals by laying down a comprehensive set of rules regarding the reuse of Software for which the Commission hold the intellectual property rights as open source software (which from now on will not require a special decision any more) and the contribution of its software developers to open source projects. These rules open the way to a less bureaucratic, more committed, and purposeful dealing of the Commission with open source 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 start by examining articles 1-4, which set the basis of this legal framework.
Field of application
Even though the title of Article 3 "General principle" and the somehow baffling wording of article 10 "By way of derogation from the general principle in Article 3" may suggest otherwise, recital (5) of the foreword and the phrasing of Article 3 itself make clear that this Decision doesn't create any obligation for the Commission to make its software available under an open source license. Simply, it effectively creates the legal foundation upon which the Commission may exercise its discretion to freely distribute its software.
Regarding the field of application of the ruleset on Article 3, the Decision adopts the widest scope possible: As indicated in Articles 1, 2 and recital (10), these rules apply to essentially every software for which the Commission holds the intellectual property rights, no matter whether it is under production, already produced and used or to be produced in the future. However, Article 4 excludes a wide variety of software, among others those which “would be an actual or potential risk to the security of the information secrets” or those whose publication could potentially threaten “public interest” or “the privacy and integrity of an individual”. For the last 2 categories, Article 4 refers to Article 4 of the Regulation (EC) 1049/2001.
Licensing procedure and license of choice
The licensing of the software under an open source license will initiate after a three-step procedure described in article 8 which aims at ensuring that the software is suitable to be released according to the criteria stated above. Article 5 describes the arguably most important part of the licensing process, the choice of the applicable open source license. Here, a general rule for the preference of the European Union Public License (EUPL) is set. The (EUPL) is a so called “strong copyleft” license, which aims to ensure that this software and its derivatives will remain open source. A deviation from this rule can be justified only when third-party intellectual property rights make the use of another license legally necessary or when concrete reasons (which are not defined in the Decision) prove another standard open source license more suitable. After this procedure is carried out and the software’s licensing under an open source license is green-lighted, the software’s source code is stored under the repository mentioned in Article 6, which is aimed at serving as a “one-stop-shop” for all of Commission’s open source software.
The choice of the European Public License (EUPL)
It should be noted that the European Commission continues to implement and promote the use of its very own EUPL, a license that aims to ensure that the software will remain open source no matter where it is implemented. It’s the author’s personal view that this choice is not without importance. It indicates the Commission’s dedication to its already established approach and mindset around open source software. A strict approach that aims at strengthening open source software by enforcing positive measures and “locking” it into an open source state, rather than encouraging the business society to adopt it.
However, the adoption of the EUPL as the default license could potentially prove the Achilles' heel of the Decision. Even though the compatibility list in the Appendix of the EUPL may solve the most pressing compatibility issues, this doesn’t affect the “strong copyleft” character of the license. A significant number of companies are reluctant to use or even totally exclude the use of “strong copyleft” licensed software, especially when they intend to integrate this software in commercial products. The above may cause a significant handicap in the adoption and usage of the Commission's software by a considerable part of the business community.
This brief presentation concludes what we know as of today for the “Decision on the open source licensing and reuse of Commission software” since its short existence doesn’t allow us to draw any more concrete conclusions on its impact. It could already be argued though that the European Commission made its support and its vision for open source software more clear than ever. Such a vote of confidence from an important European organization may affect 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 the technical capability of the European Commission vows to contribute to the community software can only be accounted as a step forward, also for the credibility of open source software.
Closer monitoring of the Decision’s implementation could prove of great interest, above others for the particularization of the wide and somewhat vague exceptions of its field of application and the perception of the default license’s choice from the developer’s and 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 support them to identify the relevant issues, covering them in the respective contracts or any other query that might arise regarding the above stated matter or other FOSS related questions.