Open Source Software Saved from the Copyright Directive

18 February 2019

Author: Astor Nummelin Carlberg

Despite uncertainties and controversies on the way, the Copyright in the Digital Single Market Directive seems to be reaching the end of the road. This week, the Member States and the European Parliament reached an agreement on a consolidated text to be put to a vote in the two institutions. No more amendments or exclusions; there will be a yes or no vote in the coming weeks.

As a pro-Openness think tank, OpenForum Europe has grave reservations about the consolidated text. Aside from the explicit aims of the text, we are deeply concerned with the unintended consequences that could stem from trying to solve a perceived specific problem by adjusting the fundamental building blocks of the Internet.

The original proposal could have regulated the platforms software developers use, cooling incentives to innovate and making software more fragile in Europe. In response to this, OFE and FSFE started the back in 2017. The OFE Intellectual Property Taskforce, chaired by Abby Vollmer of GitHub and James Lovegrove of Red Hat, coordinated our efforts with thousands of developers, researchers, businesses, activists and organisations. Together we wrote letters, petitions, and held meetings and events in Brussels and in the EU member states.

In the end, we managed to save codeshare from the risks presented by the Copyright Directive; article 13 now excludes “open source software development and sharing platforms” from its scope (see article 2(5) in the provisional agreement). At least this one unintended consequence has been avoided.

The platforms (or ‘Online content sharing service providers’ in the language of the Directive) that are included in the scope, will in practice be required to filter uploaded content, as they will be liable for copyrighted content uploaded by their users.

We thank everyone who got engaged and spoke up!

From a wider perspective, however, OFE has learned that we were able to raise awareness and understanding of what drives software development in Europe today among many policymakers.

Misunderstandings of how software ecosystem operates/collaborates, about the pervasive use of Free and Open Source software licenses, and the power and mainstream commercial nature of Open Source Software led to it development being an unintended victim of the Copyright Directive.

We corrected this oversight by taking the time to educate and inform, in order to get the text right. We still have lots to do, however. What is promising is that we now have an engaged and broad coalition of Open Source citizens who have proven that we can be effective.

Beyond the exclusion, the most important result of our campaign is that we have spent the time educating policy makers. We spoke up, and they listened.

For the coming years, Open Source advocacy should in our view move out of the defensive stance, and engage with policy makers on positive and constructive terms. This will be important as the EU and Member State governments move to regulate the tech space.

Let’s do our part to ensure open source software never becomes an unintended victim of regulation.