Request for approval: EUPL (European Union Public Licence) legal analysis

[Schmitz, Patrice-Emmanuel]

Hi all, 

Please find hereafter a legal analysis of the conformance of the European Union Public Licence v.1.0 to the Open Source Definition
This analysis is based three years study and preparation work, formalised on several documents and studies provided by specialised IPR lawyers, that are published on the European Commission IDABC Web SITE, in particular:


The Study into Open Source Licensing of software developed by The European Commission (December 2004): http://ec.europa.eu/idabc/servlets/Doc?id=24394 

A public consultation on the first draft EUPL: “Report on outcomes of public consultation on Draft EUPL V 0.1” (2005): http://ec.europa.eu/idabc/servlets/Doc?id=24392 

The publication and analysis of the comments received during the public consultation (2005): http://ec.europa.eu/idabc/servlets/Doc?id=24391 

The Study on the compatibility mechanism  of the EUPL V 1.0 (2006): http://ec.europa.eu/idabc/servlets/Doc?id=27472 



Text of the licence is indented in a san-serif typeface. Text of the analysis is in this serif typeface.

European Union Public Licence V.1.0 


EUPL © the European Community 2007 



This European Union Public Licence (the "EUPL") applies to the Work or Software (as defined below) which is provided under the terms of this Licence. Any use of the Work, other than as authorised under this Licence is prohibited (to the extent such use is covered by a right of the copyright holder of the Work). 

The Original Work is provided under the terms of this Licence when the Licensor (as defined below) has placed the following notice immediately following the copyright notice for the Original Work: 

Licensed under the EUPL V.1.0 

or has expressed by any other mean his willingness to license under the EUPL. 


1. Definitions 

In this Licence, the following terms have the following meaning: 

- The Licence: this Licence. 

- 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 Source Code: the human-readable form of the Work which is the most convenient for people to study and modify. 

- The Executable Code: any code which has generally been compiled and which is meant to be interpreted by a computer as a program. 

- The Licensor: the natural or legal person that distributes and/or communicates the Work under the Licence. 

- Contributor(s): any natural or legal person who modifies the Work under the Licence, or otherwise contributes to the creation of a Derivative Work. 

- The Licensee or "You": any natural or legal person who makes any usage of the Software under the terms of the Licence. 

- 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. 

This paragraph complies with the terms of the Open Source Definition in the following ways: 
1.Free Redistribution
Beyond a definition of the term for the purposes of this document, this Article does not touch upon the question of distribution.
2.Source Code
This Article explicitly defines the source code as being the preferred form in which a programmer would modify the program. 
3.Derived Works
This article does not restrict the making of modifications and derivative works.
4.Integrity of The Author's Source Code
This article does not bear on the integrity of the author's source code.
5.No Discrimination Against Persons or Groups
Encompassing both natural and legal persons as subjects, this Article does not discriminate against persons or groups.
6.No Discrimination Against Fields of Endeavor
Nothing in this Article restricts anyone from making use of the program in any specific field of endeavour.
7.Distribution of License
Nothing in this Article requires the execution of an additional license by parties to whom the Work is distributed.
8.License Must Not Be Specific to a Product
Nothing in this article refers to a particular product. The rights attached to the Work therefore do not depend on the program's being part of a particular software distribution.
9.License Must Not Restrict Other Software
This Article does not attempt to place restrictions on other software that is distributed along with the licensed software.
10. License Must Be Technology-Neutral
Neither this nor any other Article are predicated on any individual technology or style of interface.

2. Scope of the rights granted by the Licence 

The Licensor hereby grants You a world-wide, royalty-free, non-exclusive, sub- licensable licence to do the following, for the duration of copyright vested in the Original Work: 

use the Work in any circumstance and for all usage, 
reproduce the Work, 
modify the Original Work, and make Derivative Works based upon the Work, 
communicate to the public, including the right to make available or display the Work or copies thereof to the public and perform publicly, as the case may be, the Work, 
distribute the Work or copies thereof, 
lend and rent the Work or copies thereof, 
sub-license rights in the Work or copies thereof. 

Those rights can be exercised on any media, supports and formats, whether now known or later invented, as far as the applicable law permits so. 

In the countries where moral rights apply, the Licensor waives his right to exercise his moral right to the extent allowed by law in order to make effective the licence of the economic rights here above listed. 

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. 

This paragraph complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
Nothing in this Article restricts any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources.
The Article explicitly states that no royalties are required for redistribution or sale. 
This Article explicitly grants a royalty-free patent usage licence ensuring that patents held by the Licensor do not restrict the free redistribution of the software.
2.Source Code
The terms in this Article apply equally to both the source code and the compiled form of the licensed Work. Thus the distribution of source code is provided for on the same terms as the distribution of the program in its compiled form.
3.Derived Works
This article explicitly allows making and distributing modifications and derived works.
4.Integrity of The Author's Source Code
This Article provides no restrictions on the distribution of source code, either in the original or in modified form.
As defined in Article 1, the same license terms apply to the source code as well as to the compiled form of the program. Article 2 allows the licensee to modify the Original Work, and make Derivative Works based upon the Work; it also allows the licensee to distribute the work, as well as to communicate it to the public.5 It follows that the licence explicitly permits the distribution of software built from modified source code.
5.No Discrimination Against Persons or Groups
This Article explicitly permits “the use of the Work in any circumstance and for all usage”; thus it does not discriminate against any person or group of persons.
6.No Discrimination Against Fields of Endeavor
This Article explicitly permits “the use of the Work in any circumstance and for all usage”; thus this Licence does not restrict anyone from using the Work in any specific field of endeavour.
7.Distribution of License
This Article does not require the execution of an additional license by parties to whom the Work is distributed.
8.License Must Not Be Specific to a Product
Neither this nor any other Articles refer to a particular product. The rights attached to the Work therefore do not depend on the program's being part of a particular software distribution.
9.License Must Not Restrict Other Software
Neither this nor any other Article attempt to place restrictions on other software that is distributed along with the licensed software.
10. License Must Be Technology-Neutral
This Article expressively specifies that the rights granted under this licence are not predicated on a certain technology or interface. They can be “exercised on any media, supports and formats, whether now known or later invented, as far as the applicable law permits so.”

3. Communication of the Source Code 

The Licensor may provide the Work either in its Source Code form, or as Executable Code. If the Work is provided as Executable Code, the Licensor provides in addition a machine-readable copy of the Source Code of the Work along with each copy of the Work that the Licensor distributes or indicates, in a notice following the copyright notice attached to the Work, a repository where the Source Code is easily and freely accessible for as long as the Licensor continues to distribute and/or communicate the Work. 

This Article complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
This Article does not bear on this term.
2.Source Code
This article states that the program must include source code, and must allow distribution in source code as well as compiled form. If the source code is not distributed along with the program, there must be a repository where the source code is freely accessible indicated in the copyright notice that is attached to the program.
3.Derived Works
This Article does not bear on this term.
4.Integrity of The Author's Source Code
This Article does not bear on this term.
5.No Discrimination Against Persons or Groups
This Article does not bear on this term.
6.No Discrimination Against Fields of Endeavor
This Article does not bear on this term.
7.Distribution of License
This Article does not bear on this term.
8.License Must Not Be Specific to a Product
This Article does not bear on this term.
9.License Must Not Restrict Other Software
This Article does not bear on this term.
10. License Must Be Technology-Neutral
This Article does not bear on this term.


4. Limitations on copyright 

Nothing in this Licence is intended to deprive the Licensee of the benefits from any exception or limitation to the exclusive rights of the rights owners in the Original Work or Software, of the exhaustion of those rights or of other applicable limitations thereto. 

This Article does not bear on any of the terms of the Open Source definition. It states that the licence does not restrict the uses that the Licensee may make of the work under the exceptions and limitations to copyright (such as “fair use” in the US). This Article explicitly states that the terms of this licence are not attempted to be imposed beyond the expiry of the underlying copyrights.


5. Obligations of the Licensee 

The grant of the rights mentioned above is subject to some restrictions and obligations imposed on the Licensee. Those obligations are the following: 

Attribution right: the Licensee shall keep intact all copyright, patent or trademarks notices and all notices that refer to the Licence and to the disclaimer of warranties.  The Licensee must include a copy of such notices and a copy of the Licence with every copy of the Work he/she distributes and/or communicates. The Licensee must cause any Derivative Work to carry prominent notices stating that the Work has been modified and the date of modification. 

This clause of this Article complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
[no bearing]
2.Source Code
[no bearing]
3.Derived Works
this clause allows modifications and derived works, and allows them to be distributed under the same terms as the license of the original software, including copyright, patent or trademarks notices as well as the disclaimer of warranties.
4.Integrity of The Author's Source Code
This clause restrict source-code from being distributed in modified form when such modifications are applied to copyright, patent or trademark notices, references to the Licence, or disclaimers of warranties. However, neither this Article nor any other Article of the licence prevents the distribution of "patch files" with the source code for the purpose of making such modifications to the program at build time. Article 2, as it applies equally to source code and object code, explicitly permits distribution of software built from modified source code.
5.No Discrimination Against Persons or Groups
[no bearing]
6.No Discrimination Against Fields of Endeavor
[no bearing]
7.Distribution of License
[no bearing]
8.License Must Not Be Specific to a Product
[no bearing]
9.License Must Not Restrict Other Software
[no bearing]
10. License Must Be Technology-Neutral
[no bearing]

Copyleft clause: If the Licensee distributes and/or communicates copies of the Original Works or Derivative Works based upon the Original Work, this Distribution and/or Communication will be done under the terms of this Licence. The Licensee (becoming Licensor) cannot offer or impose any additional terms or conditions on the Work or Derivative Work that alter or restrict the terms of the Licence. 

This paragraph complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
This paragraph ensures that distributors of derived versions will not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. No royalty or other fees may be imposed for such sale.
2.Source Code
[not affected]
3.Derived Works
[not affected]
4.Integrity of The Author's Source Code
[not affected]
5.No Discrimination Against Persons or Groups
[not affected]
6.No Discrimination Against Fields of Endeavor
[not affected]
7.Distribution of License
This paragraph ensures that the rights attached to the program apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
8.License Must Not Be Specific to a Product
[not affected]
9.License Must Not Restrict Other Software
[not affected]
10. License Must Be Technology-Neutral
[not affected]

Compatibility clause: If the Licensee Distributes and/or Communicates Derivative Works or copies thereof based upon both the Original Work and another work licensed under a Compatible Licence, this Distribution and/or Communication can be done under the terms of this Compatible Licence. For the sake of this clause, "Compatible Licence" refers to the licences listed in the appendix attached to this Licence. Should the Licensee's obligations under the Compatible Licence conflict with his/her obligations under this Licence, the obligations of the Compatible Licence shall prevail. 

This paragraph complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
[not affected]
11.Source Code
[not affected]
12.Derived Works
This paragraph allows  modifications and derived works, and allows them to be distributed under the same terms as the license of the original software. Additionally, it points to an irreducible list of compatible licenses in the Appendix, under which derived versions may be distributed. This may be useful in cases where licensors – such as European public sector organisations – are required by law to include certain terms in their licences, and therefore must use a licence such as the EUPL. In such cases, licensors may not be required by law to ensure that the same terms are used by distributors of derived works, who are therefore allowed by this clause to use licences listed in the Appendix.
13.Integrity of The Author's Source Code
[not affected]
14.No Discrimination Against Persons or Groups
[not affected]
15.No Discrimination Against Fields of Endeavor
[not affected]
16.Distribution of License
While under this paragraph the rights attached to the program  apply to all to whom the program is redistributed without the need for execution of an additional license by those parties, derived works may also be distributed under  the compatible licenses listed in the Appendix.
17.License Must Not Be Specific to a Product
[not affected]
18.License Must Not Restrict Other Software
[not affected]
19. License Must Be Technology-Neutral
[not affected]

Provision of Source Code: When distributing and/or communicating copies of the Work, the Licensee will provide a machine-readable copy of the Source Code or indicate a repository where this Source will be easily and freely available for as long as the Licensee continues to distribute and/or communicate the Work. 

This paragraph complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
[not affected]
20.Source Code
This paragraph states that the program must include source code, and must allow distribution in source code as well as compiled form. Where some form of the program is not distributed with source code, there must be a well-publicized means of obtaining the source code at no cost. The definition of source code in Article 1 ensures that the preferred form in which a programmer would modify the program is provided.
21.Derived Works
[not affected]
22.Integrity of The Author's Source Code
[not affected]
23.No Discrimination Against Persons or Groups
[not affected]
24.No Discrimination Against Fields of Endeavor
[not affected]
25.Distribution of License
[not affected]
26.License Must Not Be Specific to a Product
[not affected]
27.License Must Not Restrict Other Software
[not affected]
28. License Must Be Technology-Neutral
[not affected]

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. 

This paragraph complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
[not affected]
29.Source Code
[not affected]
30.Derived Works
[not affected]
31.Integrity of The Author's Source Code
While this paragraph does not require derived works to carry a different name or version number from the original software, it makes clear that distributors other than the original distributor may not make use of the original distributor's  trade names, trademarks, service marks, or names, other than within the limits of what is customary and reasonable.
32.No Discrimination Against Persons or Groups
[not affected]
33.No Discrimination Against Fields of Endeavor
[not affected]
34.Distribution of License
While clarifying that 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, this clause does ensures that there is no requirement for the execution of additional licences by parties to whom the software is redistributed.
35.License Must Not Be Specific to a Product
[not affected]
36.License Must Not Restrict Other Software
[not affected]
37. License Must Be Technology-Neutral
[not affected]

6. Chain of Authorship 

The original Licensor warrants that the copyright in the Original Work granted hereunder is owned by him/her or licensed to him/her and that he/she has the power and authority to grant the Licence. 

Each Contributor warrants that the copyright in the modifications he/she brings to the Work are owned by him/her or licensed to him/her and that he/she has the power and authority to grant the Licence. 

Each time You, as a Licensee, receive the Work, the original Licensor and subsequent Contributors grant You a licence to their contributions to the Work, under the terms of this Licence. 

This paragraph does not bear on the terms of the Open Source Definition, as it merely restates the basic fact of copyright law that each author holds the copyright to her/his contribution; and that by distributing the work, they grant this licence to the Licensee. 
7. Disclaimer of Warranty 

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. 

For the above reason, the Work is provided under the Licence on an "as is" basis and without warranties of any kind concerning the Work, including without limitation merchantability, fitness for a particular purpose, absence of defects or errors, accuracy, non-infringement of intellectual property rights other than copyright as stated in Article 6 of this Licence. 

This disclaimer of warranty is an essential part of the Licence and a condition for the grant of any rights to the Work. 

This paragraph does not affect any of the terms of the Open Source Definition. 


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, including without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, loss of data or any commercial damage, even if the Licensor has been advised of the possibility of such damage. However, the Licensor will be liable under statutory product liability laws as far such laws apply to the Work. 

This paragraph does not affect any of the terms of the Open Source Definition.

9. Additional agreements 

While distributing the Original Work or Derivative Works, You may choose to conclude an additional agreement to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or services consistent with this Licence. However, in accepting such obligations, You may act only on your own behalf and on your sole responsibility, not on behalf of the original Licensor or any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against such Contributor by the fact You have accepted any such warranty or additional liability. 

This paragraph complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
[not affected]
2.Source Code
[not affected]
3.Derived Works
[not affected]
4.Integrity of The Author's Source Code
[not affected]
5.No Discrimination Against Persons or Groups
[not affected]
6.No Discrimination Against Fields of Endeavor
[not affected]
7.Distribution of License
The rights attached to the program apply to all to whom the program is redistributed without the need for execution of an additional license by those parties. However, Licensees may enter into additional agreements with third parties, such as an agreement to provide service related to the program. Neither other Licensees nor contributors to the program (original or subsequent) can be bound by such an agreement.
8.License Must Not Be Specific to a Product
[not affected]
9.License Must Not Restrict Other Software
[not affected]
10. License Must Be Technology-Neutral
[not affected]
10. Acceptance of the Licence 

The provisions of this Licence can be accepted by clicking on an icon "I agree" placed under the bottom of a window displaying the text of this Licence or by affirming consent in any other similar way, in accordance with the rules of applicable law. Clicking on that icon indicates your clear and irrevocable acceptance of this Licence and all of its terms and conditions. 

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 creation by You of a Derivative Work or the Distribution and/or Communication by You of the Work or copies thereof. 

This Article does not affect any of the terms of the Open Source Definition, as it refers to the mechanism by which the licence is accepted, rather than the substance of the licence itself. While providing an illustrative example of how acceptance of this licence may be affirmed, this Article notes that the Licence is accepted simply through the exercise of rights granted solely by the Licence.
11. Information to the public 

In case of any Distribution and/or Communication of the Work by means of electronic communication by You (for example, by offering to download the Work from a remote location) the distribution channel or media (for example, a website) must at least provide to the public the information requested by the applicable law regarding the identification and address of the Licensor, the Licence and the way it may be accessible, concluded, stored and reproduced by the Licensee. 

This Article does not affect any of the terms of the Open Source Definition. It draws attention to provisions that may apply in applicable law, but does not impose any provisions where not required by applicable law.
12. Termination of the Licence 

The Licence and the rights granted hereunder will terminate automatically upon any breach by the Licensee of the terms of the Licence. 

Such a termination will not terminate the licences of any person who has received the Work from the Licensee under the Licence, provided such persons remain in full compliance with the Licence. 

This paragraph does not affect any of the terms of the Open Source Definition. While the licence is revoked for a Licensee who breaches its terms, the rights of other Licensees under this licence will not be affected by such a breach.


13. Miscellaneous 

Without prejudice of Article 9 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. 

The European Commission may put into force translations and/or binding new versions of this Licence, so far this is required and reasonable. New versions of the Licence will be published with a unique version number. The new version of the Licence becomes binding for You as soon as You become aware of its publication. 

This paragraph complies with the terms of the Open Source Definition in the following ways:
1.Free Redistribution
[not affected]
2.Source Code
[not affected]
3.Derived Works
[not affected]
4.Integrity of The Author's Source Code
[not affected]
5.No Discrimination Against Persons or Groups
[not affected]
6.No Discrimination Against Fields of Endeavor
[not affected]
7.Distribution of License
This paragraph corresponds to Article 7 of the Open Source definition by clearly stating that the rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
8.License Must Not Be Specific to a Product
[not affected]
9.License Must Not Restrict Other Software
[not affected]
10. License Must Be Technology-Neutral
[not affected]
The third paragraph in this Article provides for the application of of authorised translations and new versions adapted to law as required by, for instance, different jurisdictions. Note that new versions that automatically apply cannot add restrictions to freedoms granted by this Licence as this Licence is granted (in Article 2) for the entire duration of the copyright in the Original Work.
14. Jurisdiction 

Any litigation resulting from the interpretation of this License, arising between the European Commission, as a Licensor, and any Licensee, will be subject to the jurisdiction of the Court of Justice of the European Communities, as laid down in article 238 of the Treaty establishing the European Community. 

Any litigation arising between Parties, other than the European Commission, and resulting from the interpretation of this License, will be subject to the exclusive jurisdiction of the competent court where the Licensor resides or conducts its primary business. 

This Article does not affect any of the terms of the Open Source Definition, as it merely states the competent court for licence disputes, as that of the Licensor. In the specific case where the European Commission is the Licensor, this Article draws attention to the law applicable.
15. Applicable Law 

This Licence shall be governed by the law of the European Union country where the Licensor resides or has his registered office. 

This licence shall be governed by the Belgian law if: 

- a litigation arises between the European Commission, as a Licensor, and any Licensee; 
- the Licensor, other than the European Commission, has no residence or registered office inside a European Union country. 


This Article does not affect any of the terms of the Open Source Definition, as it merely states the applicable law for licence disputes. In case of a Licensor with no presence in a European Union country, by specifying Belgian law this Article ensures that the interpretation of this Licence will be consistent across different jurisdictions. It should be noted that the applicable law and jurisdiction need not be the same; the latter refers to the competent court for resolving a dispute, and the former to the legal framework within which the text of the licence should be interpreted.

Appendix 
"Compatible Licences" according to article 5 EUPL are: 

- General Public License (GPL) v. 2 

- Open Software License (OSL) v. 2.1, v. 3.0 

- Common Public License v. 1.0 

- Eclipse Public License v. 1.0 

- Cecill v. 2.0 


This Appendix does not bear on the terms of the Open Source Definition.


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end of message
Patrice-Emmanuel Schmitz