Release of OFE & FSFE White Paper: European Copyright reform – Impact on Free and Open Source Software and developer communities

08 September 2017

Author: OpenForum Europe

Open Forum Europe and the Free Software Foundation Europe teamed up for an initiative to show the implications of the proposed copyright reform for Free and Open Source Software (FOSS) development ecosystem: SAVE CODE SHARE. As part of this initiative, we are proud to release our White Paper, peer reviewed by Dr. Christina Angelopoulos, which highlights the ways in which the proposed Article 13 could unintentionally harm the communities and the business built around FOSS.

FOSS is often developed by collaborative networks of programmers. For FOSS, the licensing terms encourage modifications and improvements by anyone. This implies allowing individual users to use the licensed software as they please, to study its source code, to be able to share it, and to customise it according to their needs.

FOSS-related platforms underpin a software and software based services market worth EUR 229 billion in the EU and that employs a workforce of 3.1 million. Therefore, it is necessary to make sure that the proposal does not have, as MEP Catherine Stihler puts it, a “negative impacts to open source’s contribution to the digital economy, nor to the internet freedoms of our European developers and consumers”.

Article 13 of the proposed Copyright Directive targets “information society providers storing and giving access to large amounts of works and other subject-matter uploaded by their users”, which is precisely what software development and other code hosting platforms do. This article is intended to address the concern about equitable sharing of the value generated by some of the new forms of innovative online content distribution, which are based on user-created content. In this debate, many questions have been raised and stakeholders have expressed their views, yet a lot of legal and practical uncertainties and consequences remained unconsidered.

After explaining in detail how FOSS software platforms work in practice and describing the most popular such platforms, this White Paper shows how Article 13 restricts important fundamental rights of developers and internet users, such as the right to privacy and the freedom to conduct a business, without achieving a proportionate benefit. Article 13 as currently proposed would shift the responsibility for protecting allegedly infringed rights from rightholders to platforms, something that would harm fundamental rights and negatively impact a thriving economic sector which has very little to do with the Directive’s intended subject matter.

If Article 13 has completely missed this impact in the software sharing environment, it is likely that it can have other unforeseen impacts. More understanding is needed about where and how innovation takes place nowadays, to fully grasp the consequences and implications that the proposed copyright legislation can create in the market.