The renewed Copyright Directive as it is currently proposed is likely to have a negative impact on Free and Open Source Software and collaborative software development, as well as on developer communities. So say OpenForum Europe (OFE) and Free Software Foundation Europe (FSFE) in the jointly written white paper 'European Copyright Reform; Impact on Free and Open Source Software and Developer Communities'.
The two OSS advocacy organisations say that specifically Article 13 impacts heavily upon several fundamental rights, such as freedom of expression, the right to privacy, the freedom to conduct a business, and the presumption of innocence.
Article 13 obliges Internet service providers that store and provide public access to large amounts of works or other subject matter uploaded by their users to ensure the functioning of agreements concluded with rightholders. Where such agreements do not apply, service providers must prevent the availability of the rightholders' intellectual property on the service. To that purpose, service providers should cooperate with rightholders and implement measures such as the use of effective content recognition technologies.
According to the authors of the white paper, collaborative software development platforms, software repositories, knowledge bases and preservation projects such as GitHub, GitLab, SourceForge, GNU Savannah, Stack Overflow and Software Heritage clearly fall under the definition of such service providers, and will have to comply.
The authors say the same about Recital 38 of the proposed Directive, which obliges each service provider to conclude licensing agreements with rightholders if its service comprises more than physically storing information and making it available to the public (i.e. more than hosting).
Under the current proposal, software platforms would no longer be able to operate as they do today and software developers' ability to share source code and collaborate in its development would be hampered, the authors conclude. Article 13 as currently proposed shifts the responsibility for protecting allegedly infringed rights from rightholders to platforms.
This could harm a sector fundamental for the Digital Single Market. Therefore, both OFE and the FSFE consider that the proposed Article 13 should be redrafted in order to be consistent with the existing legal framework around intermediary liability, as established by the E-Commerce Directive.