There has been a lot of digital regulation created in the EU in the past three years. Some of these texts include clarifications that certain obligations, in certain situations, do not apply to free and open source software (FOSS). With this legislative cycle ending, and with many public sector entities looking to the European Union for guidance or inspiration, we've decided to gather the most recent texts which deal with defining FOSS in legislation.
First are four pieces of legislation which have been finalised in recent months (AI Act, CRA, PLD, IEA), followed by two texts which were published in 2020 & 2021.
The AI Act
Text: 2022/0303(COD)
"Free and open-source licence" is defined in recital 102:
"Software and data, including models, released under a free and open-source licence that allows them to be openly shared and where users can freely access, use, modify and redistribute them or modified versions thereof (...) The licence should be considered to be free and open-source also when it allows users to run, copy, distribute, study, change and improve software and data, including models under the condition that the original provider of the model is credited, the identical or comparable terms of distribution are respected."
The term "free and open-source licence" is then used in article 25(4), without further explanation, and also in articles 52(2) and 54(6), with a few extra descriptive words:
"The obligations set out in paragraph 1, points (a) and (b), shall not apply to providers of AI models that are released under a free and open-source licence that allows for the access, usage, modification, and distribution of the model, and whose parameters, including the weights, the information on the model architecture, and the information on model usage, are made publicly available"
Cyber Resilience Act
Text: 2022/0272(COD)
Recital 18 states:
"Free and open-source software is understood as software the source code of which is openly shared and the licensing of which provides for all rights to make it freely accessible, usable, modifiable and redistributable."
Product Liability Directive
Text: 2022/0302(COD)
Recital 14 states:
"Free and open-source software, whereby the source code is openly shared and users can freely access, use, modify and redistribute the software or modified versions thereof (...)"
Interoperable Europe Act
Text: 2022/0379(COD)
Article 2(12) states:
"(12) ‘open source licence’ means a licence whereby the reuse, redistribution and modification of software is permitted for all uses on the basis of a unilateral declaration by the right holder that may be subject to certain conditions, and where the source code of the software is made available to users indiscriminately;"
Those are the four recent texts. For context, we also present two documents from just before these recent legislative files.
The EC's Open Source Strategy 2020-2023
Text: C(2020) 7149
"Free and open source software: Open source software (or free software) combines copyright and a licence to grant users the freedom to run the software, to study and modify it, and share the code and modifications with others."
The 2021 Commission Decision on open source licensing
Text: 2021/C 495 I/01
This short document includes these definitions:
"‘open source licence’ means a licence whereby the reuse of software is permitted for all specified uses in a unilateral declaration by the rightholder, and where the source codes of the software are made available for users;"
and
"‘standard open source licence’ means an open source licence generally recognised as such by open source organisations;"
The document gives one example of a standard open source licence: the European Union Public Licence (EUPL) version 1.2.
Until next time
We hope you've found this overview useful. In a similar format we hope to soon present examples of public sector FOSS legislation from the national level. If anyone would like a preview, some of this information can be found in our OSOR country intelligence reports and the 2021 study on the economic impact of open source in the EU.
Photo by GeoJango Maps on Unsplash