4. Promote legal certainty

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Uncertainty with regard to the liability exposure of relevant stakeholders and the infringement of property rights assigned through, for example, copyright and patents, negatively impact the sharing and reuse of IT solutions.

In order to reduce the degree of legal uncertainty about intellectual property rights’ limitations and exceptions, public administrations are encouraged to follow the recommendations listed below.

4.1. Use standard templates for liability agreements

To facilitate collaborative software development and cooperation between project partners, the use of standard templates for liability agreements is recommended.

Supporting instrument The European Commission has developed Guidelines and Templates for Agreements between public administrations [9] to support administrations working on collaborative IT projects.

Standard templates are practical tools such as licence, consortium and collaboration agreements. These templates make it easier for public administrations to adopt the suitable approach to intellectual property rights and licensing of IT solutions, which, in turn, increases the potential for their sharing and reuse.

4.2. Decide the type of rights’ attribution approach to be used as early as possible and inform all involved

The use of certificates of origin and collaboration agreements provides developers with guidelines on the requirements to be followed when contributing to the development and maintenance of IT solutions. It also ensures that the guardian of a project’s output has the necessary ownership or rights over all contributions to ensure further distribution under the chosen licence. It is important that rights are attributed as early in the process as possible because later amendments may prove difficult or impossible. Clarity on the attribution of rights provides consumers with some form of legal assurance of the provenance and integrity of their contribution.

The joint development of IT solutions can be successful with either a central or decentralised control structure although each approach has its limitations. For instance, where there is central control of intellectual property rights, better coordination is achieved but it is possible that developers are discouraged from contributing. Where developers are allowed to retain property rights, they are motivated to contribute but issues of control over the broad IT solution may arise.

Additional constraints should also be taken into account. For instance, it is often technically impossible for public administrations to give away rights.

4.3. Use existing open source software licences to share your IT solution

Public administrations should use licences with the least legal friction possible, i.e. with the minimum possible restrictions in terms of sharing and reuse of software. This is best done by using open source licences, such as the EUPL.

Supporting instrument The European Union Public Licence (EUPL) is the first European free/open source software (F/OSS) licence that makes it possible for software to be freely used, modified, and shared. [12]

Furthermore, to limit incompatibilities between licences and promote legal interoperability of IT solutions, public administrations should reuse existing licences instead of writing their own.

4.4. Detect licence compatibility issues

Currently, hundreds of licences are recognised as open and are used by public administrations around the world. Such a proliferation of licences may lead to compatibility issues, which could limit the sharing and reuse of IT solutions. When merging two pieces of software code with different licences, for example, the restrictions imposed by a first licence may not be compatible with the restrictions imposed by a second one, making it impossible to use the combined solution.

Supporting instrument The European Commission offers an online licence wizard to help administrations find the most appropriate licence to distribute their work and identify potential licence incompatibilities early on. [14]

In order to reduce this risk, it is important that public administrations detect licence incompatibilities as early as possible, for example, with the support of specific tools.

Recommended measures for central bodies

• Select and promote the use of appropriate licences

To enable the reuse of IT solutions, central bodies should select appropriate licences and licence templates, and promote their use.

• Provide support on matters related to intellectual property rights and licensing

By providing practical advice in these areas, central bodies can support public administrations dealing with intellectual property rights and licensing issues related to the sharing and reuse of IT solutions. This may include, for example, helping them to better understand the rights and obligations associated with a given solution and to identify whether a third party holds any rights to it.


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