Subject: Request for approval: EUPL (European Union Public Licence)
From: "Schmitz, Patrice-Emmanuel" <patrice-emmanuel.schmitz@be.unisys.com>
Date: Tue, 13 May 2008 10:21:53 +0100
Tue, 13 May 2008 10:21:53 +0100
Dear Reviewers

 

On March 13, I submitted the European Commission's license EUPL v 1.0 to
OSI licence review (as being the "Point of Contact" for this).

 

The discussion with reviewers was really useful (thanks to all, and
especially to Russ Nelson, Ernie Prabhakar, Bruce Perens, Matthew
Flaschen, John Cowan, Rick Moen, Brian Behlendorf, Chuck Swiger and many
others). Their remarks were merged with the concusions of a workshop of
50 experts organised by the European Commission, which recommended a
series of modifications, producing a draft EUPL v 1.1

It is therefore wise to submit this v 1.1 draft for OSI recognition
rather than v 1.0 (and to initiate a new reviewer's round about this v
1.1).

 

 

You will read hereafter two sections:

1: the draft EUPL v 1.1 (full text)

2: the complete list of recommended modifications to v 1.0 and rationale
for it.

 

 

Thanks for comments!

Best Regards,

Patrice-Emmanuel 

 

SECTION 1:  Full Text of the draft EUPL v 1.1

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European Union Public Licence

V.1.1

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.1.1

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 or
providing access to its essential functionalities 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-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.

 

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 or of a later version of this Licence unless the Original
Work is expressly distributed "ONLY" under this version of the 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 accept the Licence, 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 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 publish translations and/or new versions of
this Licence, so far this is required and reasonable, without reducing
the scope of the rights granted by the Licence. New versions of the
Licence will be published with a unique version number.

All linguistic versions of this Licence, approved by the European
Commission, have identical value. Parties can take advantage of the
linguistic version of their choice.

 

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.

 

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

 

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SECTION 2:  Recommendations for EUPL v 1.1 and rationale

The European Commission approved the EUPL v 1.0 on 9 January 2007
(linguistic versions EN, FR, DE) and on 9 January 2008 (all other
linguistic versions). The EUPL was analysed during a dedicated workshop
by 50 legal and open source experts from all Member States for the
purpose of closing the translation process and making a list of any
improvements that were still necessary. 

In addition to this workshop, a useful discussion was conducted with the
members of the Open Source Initiative licence reviewers.

A limited number of modifications to the text of the EUPL have been
proposed resulting from the workshop and discussion. The proposed
changes are always clarifications and never reverse or change the
meaning of any EUPL provision.

The exhaustive list of the seven proposed modifications to v 1.0 is
provided hereafter. Added parts are UPPERCASE,  deleted parts are
[WITHIN BRACKETS]

# 1 - last paragraph

"- 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 OR
PROVIDING ACCESS TO ITS ESSENTIAL FUNCTIONALITIES at the disposal of any
other natural or legal person."

Rationale:         this is to clarify that the EUPL covers also the
activity of on-line "Application Service Provider". The idea was already
present in # 2 (communicate to the public, including the right to
...perform publicly, as the case may be, the Work). The modified # 1 is
more consistent with # 2 and in line with the request from the 25
January workshop participants to be more explicit in the definition of #
1.

# 5 - 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 OR OF A LATER VERSION OF THIS LICENCE UNLESS THE ORIGINAL WORK
IS EXPRESSLY DISTRIBUTED "ONLY" UNDER THIS VERSION OF THE 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."

Rationale:         By adding the terms "or of a later version of this
Licence" it is clear that any Work distributed under the EUPL v. 1.0
(for example) may be re-distributed, even unmodified, by any interested
stakeholder under the EUPL v. 1.1 or later (for example). This replaces
the deleted last sentence of # 13 [:"The new version of the Licence
becomes binding for You as soon as You become aware of its publication."
] (which may had a similar effect). Thanks to this simplification, it
will not be needed to add later versions of the EUPL in the Annexe (the
Compatibility list).

            By adding "unless the Original Work is expressly distributed
"ONLY" under this version of the Licence." the Licensor control on his
Original Work is preserved: upgrade to the later EUPL version is the
default, however not an obligation.

 

# 6 - last paragraph

"Each time YOU ACCEPT THE LICENCE, the original Licensor and subsequent
Contributors grant You a licence to their contributions to the Work,
under the terms of this Licence."

Rationale:         this is to simplify the previous formulation, which
was: [Each time You, as a licensee, receive the Work,] .... "Receiving
the Work as a Licensee" means "accepting the Licence". The new
formulation is better because it is simpler and because it refers
clearly to # 10 "Acceptance of the Licence" where this process is
described.

# 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."

Rationale:         "[THE IDENTIFICATION AND ADDRESS OF THE LICENSOR,]"
is deleted. The EUPL refers to the applicable law, however the EUPL
should not "predict or provide" the content of this applicable law
(maybe requesting the identification and the address, but possibly also
other information).

# 13 - paragraph 3

"The European Commission may PUBLISH [PUT IN FORCE] translations and/or
new [BINDING] versions of this Licence, so far this is required and
reasonable, WITHOUT REDUCING THE SCOPE OF THE RIGHTS GRANTED BY THE
LICENCE. New versions of the Licence will be published with a unique
version number."

Rationale:         this precision reflects the original intention of the
European Commission. It is useful because the exact meaning of the term
"reasonable" may appear too vague. For new versions of the EUPL, the
term "publish" is more appropriate than "put in force... binding
versions", because the EUPL is a contract between parties and not a part
of the general "Community Law". 

# 13 - paragraph 4

" LINGUISTIC VERSIONS OF THIS LICENCE, APPROVED BY THE EUROPEAN
COMMISSION, HAVE IDENTICAL VALUE. PARTIES CAN TAKE ADVANTAGE OF THE
LINGUISTIC VERSION OF THEIR CHOICE."

Rationale:         This new paragraph reflects the original intention of
the European Commission when providing (currently) 22 linguistic
versions of the EUPL. However, this was not yet written in the EUPL. It
addresses questions like: "If Licensees contract under the EUPL based on
its English version, can a Licensor restrict their rights based, for
example, on the Hungarian version (in the case this one would be more
restrictive)?"

" [ THE NEW VERSION OF THE LICENCE BECOMES BINDING FOR YOU AS SOON AS
YOU BECOME AWARE OF ITS PUBLICATION. ]"

Rationale:         This previous last sentence of # 13 is deleted and
replaced by the addition done in # 5, which presents several advantages:

            - Replaced formulation was perceived as an "unilateral
contract change";

            - Date and reality of "becoming aware" and accepting new
versions was uncertain;

            - Replaced formulation had no impact on the relevant
application's source code and documentation (that may still refer to the
previous version). At the contrary, the new formulation of # 5 allows
any stakeholder to insert the reference to the new version in the source
code and documentation, and to re-distribute it under the new version as
from a certain date (without impacting relationships with previous
recipients) unless the Original Work was licensed "ONLY" under a
specific EUPL version number (this respects the Licensor willingness,
for the case he/she wants to keep control on the opportunity to apply or
not later EUPL versions, if any). 

 

End of section 2

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