Request for approval: EUPL (European Union Public Licence)
Schmitz, Patrice-Emmanuel
patrice-emmanuel.schmitz at be.unisys.com
Fri Mar 14 10:43:56 UTC 2008
> Dear OSI Board members / licence reviewer,
>
>
>
> I contact you on behalve (and as a member) of the R4eGov project,
> which appointed me as the "Contact Point" (see attached letter).
> R4eGov partners are forming a large developers community of public
> sector software, with interest in the OSI approval of the European
> Union Public Licence (EUPL).
>
>
>
> On 9 January 2007, after two years preparatory work, several studies
> and a public consultation published on its official Web Site
> (http://ec.europa.eu/idabc/en/document/5425 ), The European Commission
> has officially approved the EUPL in the framework of its IDABC
> programme for distributing its own software according to Open Source
> principles, while forbidding any exclusive "appropriation" of this
> software by third parties and being compliant with European law and
> the law and terminology used in Member States.
>
>
>
> The EUPL is copyrighted (c) the European Community.
>
>
>
> In January 2008, the EUPL has been approved with binding value in 22
> languages used inside the The European Union. The European Commission
> encourages other public administrations in Europe to use the EUPL and
> to undertake software distributions. A complementary aspect of this
> approach is to make European Public sector contributions to OSS more
> visible through a new "Open Source Observatory and Repository" (OSOR)
> that will be on line in July 2008.
>
>
>
> The partners of the R4eGov (Research for eGovernment) project - funded
> by the European Commission under the 6th framework programme - (see
> list on www.r4egov.eu) are interested to use the EUPL for distributing
> software developed under their common project, and asked us to be the
> point of contact for this process.
>
>
>
> Therefore, after requesting from the licence stewart - represented by
> the European Commission - which formulated no objections and is aware
> of the interest of the large R4eGov community to get the OSI
> certification, we hereby submit the EUPL to the OSI board as follows,
> by:
>
>
>
> 1. Telling which existing OSI-approved licence is most similar to
> the EUPL licence.
>
> * Explaining why that licence will not suffice for the needs.
>
> * If the proposed licence is derived from an OSI approved
> licence we have already approved, describing exactly what is changed.
>
>
>
> 2. Explaining how software distributed under EUPL can be used in
> conjunction with software distributed under other open source
> licences.
>
> * Which licence do we think will take precedence for derivative
> or combined works?
>
> * I there any software licence that is entirely incompatible
> with the proposed licence?
>
>
>
> 3. to 5. Providing the licence text, a legal analyse and a
> categorization.
>
>
>
>
>
>
>
> ### 1.: most similar licence
>
>
>
>
>
> #####################################################################
>
> #
>
> # Section
> 1:
>
> # Most similar licence, rationale for new licence, changes
>
> #
>
> #####################################################################
>
>
>
> The existing OSI-approved licence which is the most similar to EUPL is
> the Open Software licence (OSL), versions 2.1 and 3.0
>
>
>
>
>
> # Explain why that licence will not suffice for your needs.
>
>
>
> Why a new EUPL software licence is is needed when about 100 open
>
> source licences exist?
>
>
>
> There are several reasons that render EUPL a unique instrument:
>
>
>
> For the first time, the European Community, through a public
> administration of the size of the
>
> European Commission, creates and publishes an open source licence to
> use it in
>
> order to distribute some of its own software. This is an important
>
> step to increase the recognition, use and distribution of open source
>
> software particularly among European public administrations.
>
>
>
> For the first time, the licence has now binding value in
>
> 22 official languages of the European Union. This is a unique
>
> acknowledgement of linguistic diversity in the open source community.
>
> The majority of other licence texts produced in North America
> consider
>
> translations as informative only, without a binding value. Contracting
> in
>
> national language is a common requirement from many governments in
> Europe.
>
>
>
> For the first time, this licence text takes into consideration the
> European "Community Law"
>
> and the European Union Member States laws , which differ in
>
> many aspects from United States Law underlying most existing open
>
> source licences. Legal traditions in several other parts of the world
>
> share some of these aspects with European law. These aspects relate to
>
> the specific copyright terminology and the provisions related to
>
> information, warranty or liability exclusion respecting consumer's
>
> rights. This is also related to applicable law and competent
>
> courts, as the EUPL guiding principle is based on trust towards
>
> Member States' parliaments and judges without restrictions or
>
> exceptions, which is the context for equally binding versions in
>
> official translations in different languages.
>
>
>
> Last, the EUPL was really written with an open
>
> mind, allowing developers to reduce the existing incompatibility
>
> barriers between the various "copyleft" licences. The EUPL
>
> communicates a list of compatible licences and authorises the
>
> re-distribution of derived works under the compatible licence of
>
> the "added component": GPL V2, Cecill V2.0, OSL V2.1 or 3.0,
>
> Common Public Licence V 1.0, Eclipse Public Licence V 1.0. Should
>
> the licensee's obligations under the compatible licence conflict
>
> with EUPL's obligations, the obligations of the Compatible
>
> Licence shall prevail.
>
>
>
>
>
>
>
> # What has been changed from the OSL?
>
>
>
> The EUPL has been drafted in a way to reflect European legal
> terminology,
>
> to allow for European applicable law and competent court, and to
>
> address issues related to concepts stemming from the continental
>
> tradition of author's rights, as well as issues of warranty or
>
> liability exclusion relevant to certain European legal
>
> environments such as Germany.
>
>
>
>
>
> The changes in detail:
>
>
>
> x Art. 2: added the right of "communication to the public" to the
>
> right of distribution. A distinction between the two concepts
>
> exists in some European legal environments (as well as a number
>
> of jurisdictions elsewhere), so that the licence must encompass both.
>
>
>
> x Art. 2: Added a clause whereby the author of the work waives her
>
> moral rights in jurisdictions where such rights apply. This is
>
> necessary to render the licence fully functional.
>
>
>
> x Art. 5: Compatibility clause with the most used copyleft licenses
>
>
>
> x Art. 8: Adapted the disclaimer of liability so as to give the
>
> authors/distributors of the Work the most extensive protection
>
> from liability possible under European and EU member state laws
>
> (some of which restrict the extent to which liability can be
>
> limited).
>
>
>
> x Art. 10: Provided a clause to fit a "click-wrap"
>
> contract-conclusion system for the acceptance of the licence. Such
>
> a conscious act is required by the laws of some EU member states.
>
> The article nevertheless notes that simple exercise of rights
>
> granted solely by the licence implies acceptance of its terms.
>
>
>
> x Art. 11: Added a clause drawing attention to law that may apply,
>
> requiring that texts of software offered for download must state
>
> certain information about the licensor, such as her name and address.
>
> This is required by the European Directive on E-Commerce of June 12,
>
> 2000. Note that the article draws attention to this legal requirement
>
> but does not in itself make this requirement where such a legal
>
> requirement does not exist.
>
>
>
> x Art. 14,15: Adapted the provisions regarding competent court
>
> (Art. 14) and applicable law (Art. 15) to the European legal
>
> environment. Beyond drawing attention to (but not requiring where
>
> not applicable) the provisions of applicable law in European
>
> jurisdictions, these articles make clear the determination of the
>
> jurisdiction based on the location of the licensor.
>
>
>
>
>
> #####################################################################
>
> #
>
> # Section
> 2:
>
> # Interaction with software distributed under other open
>
> # source licences
>
> #
>
> #####################################################################
>
>
>
>
>
>
>
> # - Which licence do you think will take precedence for
>
> # derivative or combined works?
>
>
>
> The compatibility clause in Art. 5 of the EUPL states:
>
>
>
> 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.
>
>
>
> If EUPL-licensed software is combined with software components
>
> distributed under one of the licences that are listed in the
>
> EUPL's irrevocable compatibility list (Annex), then the compatible
>
> licence takes precedence over the EUPL. "Compatible Licences"
>
> according to article 5 EUPL currently 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 list may be extended to include other licences in the future.
>
> A licence, once added to this list, cannot be removed from it
>
> any more.
>
>
>
> EUPL-licensed software may be combined with software components
>
> distributed under a licence not in the compatibility list only if
>
> such a licence allows the EUPL to take precedence of the combined
>
> derivative work, in which case the EUPL shall take precedence.
>
>
>
> Derived works must be distributed under the EUPL or one of the
>
> licences in the compatibility list.
>
>
>
> # - Is there any software licence that is entirely incompatible
> with the proposed licence?
>
>
>
> Software distributed under the EUPL may be distributed in
>
> combination with other software that is published under one of the
>
> licences on the compatibility list.
>
>
>
> Providing the combination is not a derived work of either the
>
> software distributed under the EUPL or the software distributed under
>
> a second licence not on the compatibility list, the software can be
>
> distributed in combination.
>
>
>
> All non-copyleft open source licences that allow the EUPL terms to
> take
>
> precedence over their terms should be compatible with the EUPL.
> Copyleft
>
> open source licences that require themselves to take precedence over
> the
>
> EUPL's terms in any derived work are probably incompatible with the
> EUPL,
>
> unless they are on the compatibility list.
>
>
>
> #####################################################################
>
> #
>
> # Section
> 3:
>
> # Text of the European Union Public Licence, version 1.0
>
> #
>
> #####################################################################
>
>
>
> European Union Public Licence V.1.0
>
>
>
>
>
> EUPL (c) 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 licence 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.
>
>
>
> 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-licence 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 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.
>
>
>
> 14. Jurisdiction
>
>
>
> Any litigation resulting from the interpretation of this Licence,
> 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 Licence,
> will be subject to the exclusive jurisdiction of the competent court
> where the Licensor resides or conducts its primary business.
>
>
>
> 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.
>
>
>
>
>
>
>
> ===
>
>
>
> 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
>
>
>
>
>
> #####################################################################
>
> #
>
> # Section
> 4:
>
> # Legal Analysis
>
> #
>
> #####################################################################
>
>
>
>
>
> A Legal analysis of the conformance of the European Union Public
> Licence v.1.0 to the Open Source Definition has been performed (see
> OO .odt attachment)
>
>
>
> This analysis is based on 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
>
>
>
> * An European Workshop with representative lawyers from Member
> States discussing the EUPL (25 January 2008) :
> http://ec.europa.eu/idabc/en/document/7311
>
>
>
>
>
> #####################################################################
>
> #
>
> # Section
> 5:
>
> # Licence proliferation categories
>
> #
>
> #####################################################################
>
>
>
>
>
> The EUPL could be classified as "popular and widely used or with
> strong communities", because the second alternative is already true:
> the European Union public sector (which is governing nearly 500
> million citizens) plans to develop itself as a very strong Open Source
> community (namely based on the EU ministerial declaration of
> Manchester and with the new OSOR tool) and the European Commission has
> demonstrated the willingness to support the EUPL. We strongly believe
> that the EUPL will be promoted long term, based on sustainable
> efforts, and that - based on the example of the European Institutions
> and because of its multi-lingualism, it will become popular in Europe
> and in third countries.
>
>
>
>
>
> Best regards,
>
>
>
>
>
>
> Patrice-E. Schmitz | Director EU
> Management Consulting
>
>
> Unisys Belgium nv/sa | Bourgetlaan
> 20 - Avenue du Bourget B-1130
> Brussels | Phone 32 2 728 06 31
> | Fax 32 2 728 04 09 | Mobile 32
> 478 50 40 65 | www.unisys.com
>
>
>
>
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