Workshop: Legal aspects of free
and open source software
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development costs by sharing and reusing software, contracting authorities must obtain
from their suppliers the right, not only to use but also preserve their rights to redistribute
the developed software in the future, as the case may be (i.e. in case the development is
successful, interesting
for other stakeholders, and if a sharing decision is taken by the
authorities).
Therefore, suppliers must not only give the “property” of the solution (including the
software code), but must also grant that it can be legally distributed to third parties by the
contracting authority, without any copyright issue or licence conflicts (in case several
components of the solution were obtained under non-compatible FOSS licences) and royalty
free (in case some proprietary standard or patents were implemented).
Example of such provision:
“The supplier will grant that the purchasing authority has the right to distribute the
delivered application under the European Union Public Licence (EUPLv1.1 or later) or
any licence(s) providing the rights stated in the article 2 of the EUPL.”
A reference to the EUPL is especially convenient due to its multi-lingual validity: it can be
part of specifications written in any language of the EU.
1.6.
The EUPL v1.2
The most recent evolution is the EUPL v1.2 drafted at the beginning of 2013 and is planned
to be published in June or July 2013. This version is very similar to the previous v 1.1
(which can still be used), but presents the following differences:
The terminology is adapted in consideration of the Lisbon Treaty (mainly the name
of EU institutions, references to the TFEU);
The licence covers “the Work” (which
can be software, but also any other kind of
copyrighted work: data, specifications, documentation etc.);
The scope of possible “additional agreements” is enlarged (i.e. they may cover
jurisdiction and any other provisions, in so far as the granted rights are not
restricted);
The list of compatible licences is extended to licences published after the initial
EUPL: GNU GPLv3, AGPLv3, MPLv2 etc.
2.
RIGHTS GRANTED TO RECIPIENTS BY THE EUPL
KEY FINDINGS
Rights granted to recipients are the rights granted by all (certified) FOSS licences.
In addition, these rights must be royalty free.
According to article 2 of the EUPL, the rights granted to the recipients of the covered
software (or, under EUPL v1.2, Work) constitute a world-wide, royalty-free, non-exclusive
licence to:
•
use the Work in any
circumstance and for all usage,
•
reproduce the Work,
•
modify the Original Work, and make Derivative Works,
•
communicate to the public, including the right to make available or display the Work
or copies thereof to the public and perform it publicly,
Policy Department C: Citizens' Rights and Constitutional Affairs
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•
distribute
the Work or copies thereof,
•
lend and rent the Work or copies thereof,
•
sub-license rights in the Work or copies thereof.
No type of activity (i.e. commercial use) is prohibited by the EUPL: any enterprise can use
the covered work for its commercial activities.
One may sell software or works covered by the EUPL and related services at a determined
price (i.e. a lump sum representing a participation to the development costs of a standard
or of a software, a maintenance fee for support services etc.), but once this is done, the
covered work cannot be subject to the management of royalties (i.e. a fee –
even small or
reasonable - per use or per user). This is because the fundamental principle of FOSS is the
freedom granted to all possible recipients in the world to make derivative works and to
redistribute such works to anyone, making the “control” of the use and the management of
royalties impossible.
Therefore, if software developers, standard developing organisations (SDO) or patent
owners may cover their costs by adopting a FRAND (fair reasonable and non discriminating)
licensing policy for using their work in proprietary implementations, they should
also adopt
a second (dual) royalty free licensing policy (like the EUPL) if they don’t want to see their
standard or specification totally ignored by FOSS implementations. This would not be
discriminatory against non-FOSS (or proprietary) implementations, as FOSS is not a group,
a product or a technology, but a legal regime that anyone may adopt.
Concerning the use of patents, the same article 2 states that the EUPL licensor grants to
the recipient
of the work a royalty-free, non exclusive usage rights to any patents held by
the licensor, to the extent necessary to make use of the rights granted on the work
distributed under the EUPL licence.
3.
WHAT MAKES THE EUPL SPECIFIC?
KEY POINTS
The EUPL is the sole FOSS licence working in 22 languages (more will be added).
At the contrary of other licences, the EUPL specifies an explicit warranty that
contributors have copyright on their contributions.
A single jurisdiction (the CJEU) could be requested to interpret the EUPL and
copyright law in case of legal problems / litigation.
A unique, variable "copyleft" applies, in order to ensure interoperability.
The EUPL is specific and different from all other FOSS licences on a number of points:
•
Multilingualism:
This point is the most visible: like many other European Union legal instruments, the
EUPL is available in 22 languages. Gaelic and Croatian version still have to be
published.
•
Terminology
The EUPL is drafted
to work under European Law, even if it may be used outside the
European Union and submitted to third country courts. Relevant provisions applie to
the copyright terminology (the “communication to the public”), to the reasonable
limitation of liability, to the reference to European treaties.