open source and the eupl on software ip - joinup.eu · 2017-10-03 · open source and the eupl on...

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Impacts ofOpen Source

and the EUPL

onsoftware IP

Intellectual Property Summit, Brussels IP-2010

Steam 6 Industry Challenges

C) Software patents,

open source,

business methods

Patrice-EmmanuelSchmitzLegal expertwww.osor.eu

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What is this presentation about

Intellectual Property Summit, Brussels IP-2010

The production (not the use) of

free/ open source software* by governments

* F/OSS or OSS, or Free Software, OSS/FS, FLOSS, or FOSS

Government expectations from adopting

the F/OSS model

IP requirements and EU actions:

The European Union Public Licence(EUPL) and its impact

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Software production in Europe…

Intellectual Property Summit, Brussels IP-2010

• ICT economy is 10% of GDP in developed countries…

but may represent 50% of economic growth!

• Software production is a €200 billion market in 2010.

20% of total spending on ICT…but accounting for 54% of ICT employment (high skill jobs)*

• Public sector is a prominent “entrepreneur” in software production.

* BSA - Business Software Alliance Feb 2010

e-Government

Health

Education

Taxes / Custom

Environment

GIS

Mobility

Content

SecurityJusticeStatistics

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Free / Open Source Software?

Intellectual Property Summit, Brussels IP-2010

Based on 4 freedoms / 10 principles *

• Run the program, for any purpose,

• Study how the program works,

• Change/improve it according to needs,

• Redistribute to anyone.

� http://www.gnu.org/philisophy/free-sw.html

� http://www.opensource.org/docs/osd

F/OSS has an irreversible economic impact:

• Everyone uses it, somewhere…

• 50 billion $ for the sole Linux market.

• Speeds-up innovation and development.

freedoms

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2010: confirming F/OSS growth *

Intellectual Property Summit, Brussels IP-2010

• 38% organisations expect to migrate mission-critical software to F/OSS in the next

12 months.

• OSS = 20% of all software developments in 2009,

23% in 2010,

27% by 2013…

• Challenge is around training (developers, lawyers) and

senior management support (culture of sharing / licensing).

• Public Sector is the most sceptical about potential cost

savings (10% over the software lifetime, vs more than 40%

in financial sector), but is the most open to sharing.

* accenture survey – august 2010

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Knowing that free software is not for free…

Our project should

deliver final results in 3

months. What about

that software we need?

Don’t worry, I already

talked to procurement

people. They will use

the fast procedure.

Great!

How long will it take ? Only six months!

Cost savings is not the main driver, say more than 90% of

public sector stakeholders. *(F/OSS business model is

service based).

Uptake is driven by:

Intellectual Property Summit, Brussels IP-2010

• Quality

• Reliability

• Speed

* accenture survey – august 2010

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Public sector challenges (2010):

Intellectual Property Summit, Brussels IP-2010

• Doing more (and doing better) with less money.

• Not reinventing the wheel, while legal framework is (widely)

global & European, but implementations are local.

• Sharing (= benchmarking, harmonising, re-using,

localising) software, know-how and best practices.

• Common interoperability standards, between fragmented

technical implementations.

Is this not sounding like the Open Source

model ?

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Classical and preliminary IP question *

Intellectual Property Summit, Brussels IP-2010

• Software owned by governments = public sector assets (intellectual property).

• Open source licenses give/transfer rights to any third party (no discrimination) for any use (even commercial) and it

authorises re-/sub-licensing !

• According to the principles of public accounting, can

governments give goods to (private) third parties?

* i.e. Consip – Italy 2008

Carlo Vaccari - The experience of

introducing the EUPL at Istat (27.09.2010)

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Classical answers *

Intellectual Property Summit, Brussels IP-2010

• The benefits of open source developments have

been acknowledged by the political authority.

• There is no “cession” of public IP, because there is no

deprivation.

• The Open Source model fits with the general criteria of

efficiency, good performance and economy, since it allows, at least potentially:

– cost savings on software development;

– support from a community (corrective maintenance);

– improvements (quality, speed, evolutive maintenance).

* Culture Commission (Chamber of Deputies - Roma)

Carlo Vaccari - The experience of introducing the EUPL at

Istat (27.09.2010)

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At EU level…

Intellectual Property Summit, Brussels IP-2010

EU Ministers acknowledge the need for sharing technologies and solutions:

EU Ministerial Declaration

approved unanimously on

24 November 2005, Manchester, United Kingdom

EU Ministerial Declaration on

eGovernment approved unanimously

on 18 November 2009 in Malmö,

Sweden,

How?

• The Open Source model could be promoted for use in eGovernment projects.

• Member States will promote the adoption of open standards in public administrations and share experiences…

• Member States will share technologies, where appropriate developcommon solutions and work towards interface harmonisation of existing solutions (in the field of eProcurement).

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Licence requirements

Intellectual Property Summit, Brussels IP-2010

First question: To be or not to be “copyleft”?

Copyleft licences: software may

be re-distributed only under the

SAME licence

(and is therefore protected against

appropriation)

Permissive licences:

software may be re-distributed

under any licence

No protection against appropriation

(BSD, MIT, Apache)

Moderated: no impact on combined works

(LGPL, MPL)

Strong: invasive to all combined works

(GPL)

Choice: Be “copyleft” (refusal of the risk to pay royalties for a combined work based on software originally licensed), but be interoperable!

EUPL

Interoperable: when needed, derivative / combined works can be distributed under another (listed) copyleft licence

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Other requirements for the EUPL

Intellectual Property Summit, Brussels IP-2010

• Must exist in all official EU languages

• Any linguistic version is valid (no need for sworn translator)

• Conformity with European copyright law checked

• Uses European copyright law and terminology

• Covers “communication to the public” (including SaaS)

• Defines applicable law (MS of the Licensor) and venue

• Realistic approach of warranty and liability

• Detailed… but comprehensive: based on legal principles,

not on technology and business practices

• Realistic approach of IPR and patents

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Implementing patented standards? FRAND licensing?

Intellectual Property Summit, Brussels IP-2010

Contrary to the new GPLv3, the EUPL (like most other copyleft licenses) is not “incompatible-by-design” with patented standards

& FRAND licensing,

However:

• Freedom in (re-)distribution / sub-licensing

is inherent to open source.

• Royalties cannot be managed (EUPL says

that distribution is « royalty-free »).

Need to invent standard licensing terms that are compatible with

F/OSS activity, i.e. FRAND % of licensor sales during a limited

period of time…

?

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Impact of the EUPL

Intellectual Property Summit, Brussels IP-2010

• Community recognition:

– OSI approved (March 2009)

– FSF (EUPL is a “free software license”)

• Initial objective reached (allowing EU institutions to licence

their own software).

• Bringing Member States to adopt the F/OSS model: The EUPL

is used by 30% of the projects from the European Commission

“Software Forge” (www.OSOR.eu). Proportion is growing.

• EUPL used by other public and private licensors (other forges).

• Commission VP Neelie Kroes (digital agenda) refers to the

EUPL for easy licensing under the EU legal framework. *

* http://www.youtube.com/watch?v=ok100U4Fo3Y&NR=1

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Examples in Member States:

Intellectual Property Summit, Brussels IP-2010

• Estonia – Interoperability Framework / 2009

I.F. requires that software developments commissionedby the public sector should be freely used on the basisof the EUPL licence.

• Spain - Royal Decree 4/2010

“EUPL will be procured, without prejudice of other licences that can guarantee the same rights…”

• Malta - Government policy GMICT P 0097 (1 June 2010)

“Government shall seek to facilitate distribution of OSS Government solutions under the EUPL. ”

• The Netherlands – NOiV licence wizard

Recommends the EUPL for software owned by government.

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Conclusions

Intellectual Property Summit, Brussels IP-2010

• Still a long way for implementing the Malmödeclaration, but practice runs faster than “the law”…

• Commission Directorates and EU agencies use the EUPL, even if the licence is still quite “virtual” in the draft EIF v2.0 and Digital Agenda.

• The EUPL – supported by other EC actions like www.osor.eu is not a “legal curiosity” anymore.

“The increasingly well developed legal infrastructure around

Open Source Software, also thanks to initiatives such as the EUPL, provides a solid and reliable foundation for public

and commercial activity, with clearly established ground

rules.”** “PLAYING TO WIN IN THE NEW SOFTWARE MARKET”

REPORT OF AN INDUSTRY EXPERT GROUP ON A EUROPEAN SOFTWARE STRATEGY, June 2009

ftp://ftp.cordis.europa.eu/pub/fp7/ict/docs/ssai/European_Software_Strategy.pdf

Unisys Corporation Page 17

Thank you.

Patrice-Emmanuel SchmitzLegal expertwww.osor.eu

This presentation reflects the author personal opinions and does not commit Unisys, the European Commission or any other stakeholder