Commission Decision of 8 December 2021 on the open source licensing and reuse of Commission software 2021/C 495 I/01

This Decision determines the conditions for the reuse and licensing of software produced by the Commission or on its behalf, and for which the Commission holds the intellectual property rights.

For the purposes of this Decision, the following definitions shall apply: ‘software’ means computer program within the meaning of Directive 2009/24/EC of the European Parliament and of the Council ; ‘Commission software’ means (i) software for which the intellectual property rights are held by the Commission, on behalf of the Union, and (ii) software owned by a third party, available under an open source licence, and which has been modified by the Commission or by a third party at the Commission’s request; ‘reuse’ means the use of software by natural or legal persons, for commercial or non-commercial purposes, including the right for those users to use, study, copy, share and modify the software; ‘EUPL’ means the European Union Public Licence, a standard open source license the current version of which (version 1.2) has been adopted by Commission Implementing Decision (EU) 2017/863, as well as any future versions of the licence; ‘licence’ means the granting of permission to reuse software under specified conditions; ‘open source licence’ means a licence whereby the reuse of software is permitted for all specified uses in a unilateral declaration by the rightholder, and where the source codes of the software are made available for users; ‘standard open source licence’ means an open source licence generally recognised as such by open source organisations; ‘repository’ means an online point of access to the source code of the software and related information such as build and install scripts, bill of materials, copyright, attribution, and licence documentation.

The Commission services may choose to make Commission software available for reuse in accordance with this Decision. Such software shall be licensed under an open source licence selected in accordance with Article 5, and shall be made available via the repository referred to in Article 6, after the procedure described in Article 8 has been followed.

This Decision shall not apply: (a) to software for which the Commission is not in a position to allow reuse due to the intellectual property rights of third parties; (b) to Commission software where the publication or sharing of its source code would be an actual or a potential risk to the security of the information systems or databases of the Commission or of another European institution, agency or body; (c) to Commission software that must be considered confidential in accordance with applicable rules or legislation, contractual obligations, or as a result of its nature or contents; (d) in cases where, due to one of the exceptions listed in Article 4 of Regulation (EC) 1049/2001 , with the necessary modifications, the Commission software must be excluded from access or can only be made accessible to a party under specific rules governing privileged access; (e) to Commission software resulting from ongoing research projects conducted by the Commission or on its behalf, which are not published and where publication would (i) interfere with the validation of provisional research results or (ii) constitute a reason to refuse registration of industrial property rights in the Commission’s favour, where such registration is deemed to be appropriate. In those cases, the software shall not be made available under an open source licence.

The choice of the appropriate open source licence in each case shall be made in accordance with the following rules, after verifying the intellectual property rights referred to in Article 8: (a) the open source licence granted by the Commission shall be the EUPL, except in the cases listed in points (b) and (c); (b) where the use of another open source licence is made obligatory due to reciprocal clauses (‘copyleft’) that apply to parts of the software originating from a third party, or where an alternative open source licence is deemed preferable to the EUPL for particular software, notably in order to facilitate its adoption by the community of users, that alternative open source licence may be used, provided it is a standard open source licence (c) where, as a result of the licence clauses applicable to parts of the software originating from a third party, a choice exists between several standard open licences, excluding the EUPL, preference shall be given to the open source licence granting the broadest rights of use to the users (‘permissive licences’).

The Commission shall use a repository as a single point of access to Commission software to facilitate access to and reuse of said software. Commission services may identify and progressively make available via the repository Commission software that was developed prior to the adoption of this Decision, if sharing is deemed to be of interest, following the internal procedure described in Article 8. Commission services may also make available via this repository Commission software that was licensed under an open source licence prior to adoption of this Decision. The repository may be made available for software for which other EU institutions, bodies, offices and agencies hold the intellectual property rights, at their request.

1 Commission software shall be made available electronically in the repository as human-readable source code and, when appropriate, in machine-readable form. The necessary documentation shall, whenever appropriate, also be made available together with the Commission software.

2 This Decision shall not require the Commission, in relation to Commission software made available via the repository, to: (a) adapt or update the software; (b) translate the software and related information into any language versions other than those already available in the repository; (c) continue the development or storage of the software or to preserve the software in a given format; (d) set up or support a community of users of the software.

The procedure for applying this Decision shall include: (i) a software identification process; (ii) the verification of the intellectual property rights for the software in accordance with implementation guidelines which shall be drafted by the Central IP Service; and (iii) a security verification.

Commission services shall be allowed to take part in and contribute to external open source projects deemed to be in the interests of the Union or of one of its policy objectives. If required by the rules applying to the project, ownership of the intellectual property rights on the contributed software may be transferred to the public or private entity in charge of those open source projects.

By way of derogation from the general principle in Article 3, the Commission may decide that Commission software will be made available under the terms of a proprietary licence, to one or several selected licensees only, for instance for the provision of a service in the public interest or in cases which are objectively justified, for public policy interests, policy reasons or technology transfer considerations. The proprietary licence may be granted on an exclusive basis if needed, and may involve the payment of royalties. In such cases, the delegation of powers in the field of intellectual property set out in (SEC(2001) 1397) shall be applicable and a Commission decision be adopted.

An inter-service group shall be set up, chaired by the Director-General responsible for the administrative execution of decisions related to intellectual property rights at the Commission. The group shall be composed of representatives of the Commission’s Directorates-General and services. It shall discuss issues of common concern and, unless the chair deems it unnecessary to do so, shall draw up reports on the implementation of this Decision in accordance with Article 12.

This Decision shall be reviewed for the first time 3 years after its adoption and every 5 years thereafter.

This Decision shall be published in the C series of the Official Journal of the European Union.