A small disclaimer
This post is based on my understanding of legal discussions. As I’m not a lawyer I already ask you to forgive me for the mistakes. It is clear that this post will be updated depending on the input of the readers or my offline discussions with legal experts.
Some introduction
A few months ago I wrote this post: Will gpl die at european administration now that eupl is available? where I asked if the European Commission will introduce a real competitor to the GPL in Europe thanks to its Open Source Licence. A licence that will be transposed as laws in the 27 European Union Member States.
The translation process
I knew that the European Commission was dealing with the translation of the EUPL because my company dealt with the process.
After a first proposal from the translation service of the European Commission, we requested to more than 40 “Open Source Licence” experts all over Europe to review, comment and propose amendment (if needed) to the Licence based on their national law.
Adapting the Licence to a Member State means that the public or private organisations wanting to use the EUPL in its language have the advantage that the Licence will preserve their national rights (copyright, obligations of the licensee, Chain of authorship, Warranty, Liability, Termination of the licence…).
Except the French Cecill licence, no other Open Source licence adapts its content with any national law!
Important notice regarding the language
The translations of the EUPL are translated in 22 languages. We are 27 Member States. We know that several countries recognise the same languages: French is used in Belgium and France; German is used in Germany, Belgium and Austria; Dutch is used in the Netherlands and Belgium…
Today, for me it is still unclear how the French version of the EUPL reflects the Belgian and/or the French law ?!? I have the same question for the other “shared” languages.
I assume that the transposition of the directive in the different laws will definitely address my incertitude
The workshop with the legal experts and Open Source practitioners
25 January 2008, Interoperable Delivery of European eGovernment Services to public Administrations, Businesses and Citizens (IDABC) organised a workshop during which all legal experts and OSS practitioners from across Europe have met to discuss their experiences with the EUPL.
A presentation of
- the Business Plan of the Informatics’ Directorate General (DG DIGIT) regarding the use of Open Source Software,
- The reasons to develop the EUPL
- Legal context and milestones of the elaboration of the EUPL
- the process of translation and quality control
- the future of EUPL: the v1.1, current and possible
compatibility /GPL V3
The future version of the EUPL
Last topic of the day was the preparation of the next version of the EUPL by discussing with the legal experts of the possible amendments to be made to the current version of the licence.
Main discussions topics were the following:
Do we need to add the Application Service Providers (ASP) (See section 1 definition)?
As most of the open source applications are “server based” it should be essential to include it
Finland expert explained how to apply the hierarchy between the distribution and the communication based on the finish law (see section 1 definition)
EUPL says the following: “Distribution and/or Communication: any act of selling, giving, lending, renting, distributing, communicating, transmitting, or otherwise making available, on-line or off-line, copies of the Work at the disposal of any other natural or legal person.”
the Finish law gives this priority for the verbs presented in bold:
- Making available
- Distribution
- Display
- Public performance (Music, Television)
- Communication
This prioritisation is important but still vague for me. Apparently this is linked with, for example, the difference existing between “watching the television” and “using a User Interface of an application”. Physically speaking you do the same: you watch a screen; but legally speaking there is a difference. As soon as I get further information I will update this post.
Polish expert explained that there is a difference between the “Work” and the “Software”
The EUPL says this (section 1 definitions): “The Original Work or the Software: the software distributed and/or communicated by the Licensor under this Licence, available as Source Code and also as Executable Code as the case may be.
– Derivative Works: the works or software that could be created by the Licensee, based upon the Original Work or modifications thereof. This Licence does not define the extent of modification or dependence on the Original Work required in order to classify a work as a Derivative Work; this extent is determined by copyright law applicable in the country mentioned in Article 15.
– The Work: the Original Work and/or its Derivative Works.”
The expert explained us that there is a difference between the “environment” and the “software”.
The environment encloses everything that allows software to run: the software, the files associated (like XML Schemas, scripts…), the database software…
The Software is just the piece of code that could run on a specific environment.
The expert requested to add new definition describing the concept of the environment.
German expert asked what means the verb “use”?
EUPL says this:
- Section 2 Scope of the rights granted by the Licence:
- “…Any use of the Work, other than as authorised under this Licence is prohibited…”
- “…use the Work in any circumstance and for all usage…”
- “…The Licensor grants to the Licensee 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 under this Licence…”
- Section 5 Obligations of the Licensee: “Legal Protection: This Licence does not grant permission to use the trade names, trademarks, service marks, or names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the copyright notice.”
- section 8 Disclaimer of Liability: “…Except in the cases of wilful misconduct or damages directly caused to natural persons, the Licensor will in no event be liable for any direct or indirect, material or moral, damages of any kind, arising out of the Licence or of the use of the Work…”
- Section 10 Acceptance of the Licence: “Similarly, you irrevocably accept this Licence and all of its terms and conditions by exercising any rights granted to You by Article 2 of this Licence, such as the use of the Work…”
The verb “to use” must be understood as “to run the program”.
Section 7 Disclaimer of Warranty
Apparently the 3rd paragraph poses problem: “This disclaimer of warranty is an essential part of the Licence and a condition for the grant of any rights to the Work.”
The question by the German expert was “what happens if there is a problem with the national law?”
Apparently a change in the wording will be needed (unfortunately I didn’t write it down to share it inside this post)
“Section 7 paragraph 3” and Section 13 are contradictory
Section 7 paragraph 3 says: “This disclaimer of warranty is an essential part of the Licence and a condition for the grant of any rights to the Work.”
Section 13. Miscellaneous says: “Without prejudice of Article 9 [Additional agreements] above, the Licence represents the complete agreement between the Parties as to the Work licensed hereunder. If any provision of the Licence is invalid or unenforceable under applicable law, this will not affect the validity or enforceability of the Licence as a whole. Such provision will be construed and/or reformed so as necessary to make it valid and enforceable...”
Effectively, Section 7 says that the “disclaimer of warranty is an essential part of the Licence” where the Section 13 days that “[if some] provision of the Licence is invalid or unenforceable…this will not affect the validity … of the licence as a whole”.
In Italy, clauses limiting warranties must be “double signed”
Section 7 should be updated in Italian because the clauses limiting the warranties must be signed by the licensor and the licensee: Reading and clicking on a button demonstrating your acceptance of the licence is not sufficient!
Bugs inherent to the Open Source software?!?
A legal expert correctly mentioned that the section 7 Disclaimer of Warranty says this “The Work is a work in progress, which is continuously improved by numerous contributors. It is not a finished work and may therefore contain defects or “bugs” inherent to this type of software development.”
This sentence presumes that Open Source Software quality is such that bugs are inherent to this type of software. Meaning that other types of applications (read closed source applications) are not subject to bugs 😉
This sentence will be removed in the future.
What means “reasonable” in the Section 13 Miscellaneous?
Section 13 says this: “The European Commission may put into force translations and/or binding new versions of this Licence, so far this is required and reasonable.”
Reasonable adjective is too vague. People could imagine that the European Commission can change the type of the Open Source classification of the EUPL to a closed source classification.
Off course, this is not the vision of the European Commission!
German expert proposed to change the adjective “reasonable” by something like “Open Source licence” or “Copyleft licence”.
Conclusion
This is not my first meeting with legal experts but it is maybe the first time that I could understand each word of an Open Source Licence thanks to the translations that was made available.
Off course, the GPL has been translated by people without any warranty of quality and completeness but here, we discussed with people wanting to translate an Open Source Licence that can be used in Europe and be used in its own language.
A lot of money has been used to translate this Licence but the advantage for the European Public or Private organisations that don’t need to translate it individually is such that our money has been perfectly used.
Today, people are working on the comments made by the experts in order to propose a new version of the Licence. It will take months before the version 1.1 will be released and everybody is free to make comments on this licence to make it the most used Open Source licence in Europe!
References
European Union Public Licence v1.0: http://ec.europa.eu/idabc/en/document/6523
Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs: http://europa.eu/scadplus/leg/en/lvb/l26027.htm
Abdelkrim... yes it's me 