EU copyright update: GitHub goes to Brussels

Continuing our work on EU copyright reform, last week GitHub visited Brussels to host an event for developers and policymakers about open source and copyright. During our trip, we also met with EU policymakers who are negotiating the final details of the EU Copyright Directive. Read on for a full event recap and to get the latest on where things stand for open source in the current negotiations.

Highlighting open source in the copyright debate

Since GitHub’s first trip to Brussels in February, we’ve worked alongside other companies, organizations, and developers in the open source software community to raise awareness about the EU Copyright Directive. While we recognize that current copyright laws are outdated in many respects and need modernization, we are concerned that some aspects of the EU’s proposed copyright reform package would inadvertently affect software.

As part of our ongoing efforts to mobilize developers and educate policymakers about this, GitHub hosted an event last Tuesday in Brussels with OpenForum Europe and Red Hat. We invited EU developers, policymakers, researchers and more to join us for Open Source and Copyright: from Industry 4.0 to SMEs.

OpenForum Europe’s Astor Nummelin Carlberg welcomed the crowd, and then James Lovegrove from Red Hat moderated a round of lightning talks on different topics:

• Policy: For GitHub, I shared how developers have been especially effective in getting policymakers to respond to problems with the copyright proposal and asked them to continue reaching out to policymakers about a technical fix to protect open source.
• Developers: Speaking from a developer’s perspective, Evis Barbullushi (Red Hat) explained why open source is so fundamental to software and critical to the EU, using examples of what open source powers every day, as well as underscoring the world-class and commercially mainstream nature of open source.
• SMEs: Sebastiano Toffaletti (European Digital SME Alliance) described concerns about the copyright proposal from the perspective of SMEs, including how efforts to regulate large platforms can end up harming SMEs even if they’re not the target.
• Research, academia: Roberto Di Cosmo (Software Heritage) wrapped up the talks by noting that he “should not be here,” because in a world in which software was better understood and valued, policymakers would never introduce a proposal that inadvertently puts software at great risk, and motivated developers to fix this underlying problem.

GitHub’s Abby Vollmer shares what developers can do to help with the EU copyright negotiations.

After the formal discussion, we finished out the evening with drinks and great conversations among developers, policy wonks, reporters, researchers, and policymakers alike. A big thank you to everyone who came out for the event and participated!

Status of open source in the negotiations

But our work isn’t over yet. In our last update, we explained that the EU Council, Parliament, and Commission were ready to begin final-stage negotiations of the copyright proposal. They’ll resume negotiations this Thursday. Of the parts most relevant to developers, negotiators from those three institutions are now working on exceptions to copyright for text and data mining (Article 3), among other “technical” elements of the proposal.

Article 13 (which would likely drive many platforms to use upload filters on user-generated content) is expected to be a thornier discussion, so negotiators are trying to get the technical elements resolved first. And since Article 2 defines which services are in the scope of Article 13, Articles 2 and 13 will be discussed together.

This means it’s not too late to contact these policymakers with your thoughts on what outcomes are best for software development. Here’s our take:

Article 2 (related to Article 13)

tl;dr = Council, adopt the Parliament’s language in Article 2.
Article 2 is important because it determines which services need to comply with Article 13. As an overall note, the language Article 2 uses to define what those services are could use some clarity, especially around what words like “organises,” “optimises,” and “promotes” mean. However, there are a few outstanding issues with the definition that are more directly relevant for software development:

• The Council’s attempt to exclude open source software development platforms from the definition is currently ineffective because it would only apply to non-for-profit platforms.
• The Parliament’s version of the definition would exclude all “open source software developing platforms.” To more effectively protect software development, Member States in the Council just need to make this technical fix: “~not-for-profit~ open source software developing platforms.”

We believe we’ve made some headway in our meetings last week in Brussels by describing how many software development platforms run as a business, but do not profit from content posted under an open source license.

This distinction isn’t intuitive, and developers can help educate policymakers about:

• How you collaboratively build software
• Why it’s useful to be able to use software that’s licensed as open source
• That developers who license their code under an open source license understand they aren’t going to earn money from licensing fees or royalties on that code
• Whether a platform is a non-for-profit isn’t the same as whether a platform is monetizing or otherwise profiting from publicly posted code under an open source license

Article 3

tl;dr = Adopt Article 3a as a mandatory exception.
On Article 3, including a broader exception for text and data mining that extends beyond only research organizations for scientific, non-profit purposes will be crucial for EU developers. However, that’s currently proposed as an optional exception (Article 3a). So why should the exception be mandatory, not just optional?

• EU developers will need the protection of a broader, mandatory exception to keep up with countries like the U.S. that don’t require the kinds of licenses proposed in the EU Copyright Directive.
• A mandatory exception also makes more sense in the spirit of harmonizing standards across the EU and creating a predictable legal environment for developers.

How you can help

Contact your Council members to explain that limiting the software exclusion to only non-for-profits in Article 2 would fail to protect open source software in Europe. On Article 3, tell them why a broad, mandatory exception for text and data mining will help EU developers and businesses stay competitive. Make it clear how important this exception will be—especially where artificial intelligence and machine learning are at play.

Developers, let’s help policymakers get these parts of the proposal right.

Written by

Abby Vollmer

@vollmera

I'm GitHub's Director of Platform Policy and Counsel, building and guiding implementation of GitHub’s approach to content moderation. My work focuses on developing GitHub’s policy positions, providing legal support on content policy development and enforcement, and engaging with policymakers to support policy outcomes that empower developers and shape the future of software.