What the new EU copyright law means for open source

Read time 3min 30sec
Each EU country will have two years to amend and implement the legislation.
Each EU country will have two years to amend and implement the legislation.

The global open source community was able to breathe a small sigh of relief as the controversial and, at times, bitterly opposed European Union's (EU's) Copyright Directive was finally approved last week. Some last-minute amendments a few weeks before the vote resulted in open source software development being left relatively, but not wholly, unscathed.

In its earlier iterations, the EU copyright proposal, specifically Article 13, made content-sharing platforms directly liable for copyrighted content that users upload. This, in effect, made it mandatory for software code sharing platforms to monitor all content that users upload for potential copyright infringement. The proposal was primarily aimed at music and video streaming platforms rather than software code but the wording was so broad that software code, and developing and sharing platforms like GitHub, Software Heritage, GitLab, GNU Savannah and SourceForge, would be caught in the net.

With the whole premise of open source software being the free and open sharing of code, the open source community was appalled. Several campaigns were launched to push back. The Free Software Foundation Europe and OpenForumEurope joined forces on a campaign, Savecodeshare.eu, to garner support for opposition to the proposed directive.

Savecodeshare.eu pointed out that "Under this proposal, code hosting platforms will be compelled to prevent copyright infringement by developing fundamentally flawed filtering technologies. These filtering algorithms will ultimately decide what material software developers should be allowed to share. Every user of a code sharing platform is to be treated as a potential copyright infringer; their content, including entire code repositories, will be monitored and blocked from being shared online at any time."

The first breakthrough came in September when the EU Parliament voted to specifically exclude "open source software developing platforms" from the provisions of Article 13. However, as Abby Vollmer, Senior Policy Manager at GitHub, pointed out in a GitHub blog, Article 13 would continue to impose a liability on the platforms that could still lead to the use of upload filters.

Pressure on EU legislators intensified and in February, just weeks before the directive was to go before the EU Parliament for a final vote, the exclusion was broadened slightly to include "open source developing and sharing platforms".

According to Vollmer, it would have been better if the exclusion had also incorporated software development archives and repositories, as this would have protected more of the software development community.

"Since elements of software development happen beyond that narrow exclusion, developers would need to consider whether they might be subject to liability for the content they host," Vollmer explained.

In effect, if they are holding content from outside the excluded platforms like GitHub, which many software developers do, they may still have to apply filtering.

Despite the opposition, the European Parliament on 26 March passed the copyright directive by 348 votes to 274, with 36 abstentions. However, there is a glimmer of hope for the open source community in that because this is only a directive, each EU country will have two years to take the legislation and amend it before implementing it in their country.

By that time, the UK may finally have Brexited, and the regulations clearly do not apply to the US or any country outside of the EU. Nevertheless, it is all but impossible to impose borders on the Internet. As Julia Reda, a German representative in the European Parliament and fierce opponent of the copyright directive, tweeted, the passing of these regulations was "a dark day for Internet freedom". Many critics, like Reda, believe that these measures will have unintended consequences, including the stifling of technological innovation.

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