Drafted response to question "What criteria determine whether an open… #124
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… source project is in scope of the CRA?" This pull request contains an initial response to the question "What criteria determine whether an open source project is in scope of the CRA?". **It is not ready to be merged**, as some legal checks are required, and the segments on Open Source Stewards and manufacturers have not yet been written. It addresses issues:orcwg#16, orcwg#21, orcwg#33, and orcwg#64
maertsen
reviewed
Feb 3, 2025
| - If you are monetising your project, without the intention of making a profit, you are out of scope as per [Recital 15 of the CRA](https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L_202402847#rct_15). Monetising without intention of making a profit means you fulfil the following cumulative requirements: | ||
| - You are not providing a software platform through which you monetise other services (for instance, Google's Android). | ||
| - You are not requiring as a condition for use the processing of personal data for reasons other than exclusively for improving the security, compatibility or interoperability of your software. | ||
| - You are receiving donations or providing technical services in exchange for remuneration, where the total received does not exceed the cost of development of your software. (_Keep track of the costs of the project(hosting, hardware, compute etc..) these costs can be covered by donations. In order to include remuneration for your worked hours in the costs of the project, you may have to create a separate legal entity that contracts you to work on the project._) |
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I think this last bullit needs breaking up. Perhaps the note about tracking cost is better addressed in a separate question?
Suggested change
| - You are receiving donations or providing technical services in exchange for remuneration, where the total received does not exceed the cost of development of your software. (_Keep track of the costs of the project(hosting, hardware, compute etc..) these costs can be covered by donations. In order to include remuneration for your worked hours in the costs of the project, you may have to create a separate legal entity that contracts you to work on the project._) | |
| - You are not charging a price for technical support services beyond cost. | |
| - You are not accepting donations with the intention of making a profit. |
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Hey, on this i'm not so sure. I think that it's really important that the user gets as clear as possible an answer to the question. I understand that it is complex, and perhaps there is a way to break it down, however I think it needs to stay within the question to avoid people misunderstanding. (for instance, people might misunderstand what is meant by "beyond costs" or "with the intention of making a profit".
| @@ -112,6 +112,15 @@ _It is worth noting however, that the intent of the EU legislators is to harmoni | |||
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| #### Q: What criteria determine whether an open source project is in scope of the CRA? | |||
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| - The CRA regulates _natural and legal persons_ (either an individual or an organisation that has a legal personality, like a business, foundation or charity). It places legal persons in three possible categories which with ascending requirements: out of scope, software steward, and manufacturer. | |||
| - You are **out of scope** of the CRA (meaning you are not required to comply with the regulation), if you have not placed your project on the market. This means: | |||
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Suggested change
| - You are **out of scope** of the CRA (meaning you are not required to comply with the regulation), if you have not placed your project on the market. This means: | |
| - You are **out of scope** of the CRA (meaning you are not required to comply with the regulation), if you merely contribute source code to free and open source software not under your responsibility. | |
| - You are a **manufacturer** under the CRA, if you place your project on the EU market. Consider: |
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I'm not sure this is the correct approach, but it may be worth moving the point on merely contributing to the top
| @@ -112,6 +112,15 @@ _It is worth noting however, that the intent of the EU legislators is to harmoni | |||
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| #### Q: What criteria determine whether an open source project is in scope of the CRA? | |||
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| - The CRA regulates _natural and legal persons_ (either an individual or an organisation that has a legal personality, like a business, foundation or charity). It places legal persons in three possible categories which with ascending requirements: out of scope, software steward, and manufacturer. | |||
| - You are **out of scope** of the CRA (meaning you are not required to comply with the regulation), if you have not placed your project on the market. This means: | |||
| - If you are not monetising your project at all, you are out of scope. | |||
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Suggested change
| - If you are not monetising your project at all, you are out of scope. | |
| - If you are not monetising your project at all, you are not a manufacturer. |
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Is this to imply that you can still be a software steward ?
| - The CRA regulates _natural and legal persons_ (either an individual or an organisation that has a legal personality, like a business, foundation or charity). It places legal persons in three possible categories which with ascending requirements: out of scope, software steward, and manufacturer. | ||
| - You are **out of scope** of the CRA (meaning you are not required to comply with the regulation), if you have not placed your project on the market. This means: | ||
| - If you are not monetising your project at all, you are out of scope. | ||
| - If you are monetising your project, without the intention of making a profit, you are out of scope as per [Recital 15 of the CRA](https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L_202402847#rct_15). Monetising without intention of making a profit means you fulfil the following cumulative requirements: |
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Suggested change
| - If you are monetising your project, without the intention of making a profit, you are out of scope as per [Recital 15 of the CRA](https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L_202402847#rct_15). Monetising without intention of making a profit means you fulfil the following cumulative requirements: | |
| - If you are monetising your project, without the intention of making a profit, you are not a manufacturer per [Recital 15 of the CRA](https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L_202402847#rct_15). Monetising without intention of making a profit means you fulfil the following cumulative requirements: |
| - You are not providing a software platform through which you monetise other services (for instance, Google's Android). | ||
| - You are not requiring as a condition for use the processing of personal data for reasons other than exclusively for improving the security, compatibility or interoperability of your software. | ||
| - You are receiving donations or providing technical services in exchange for remuneration, where the total received does not exceed the cost of development of your software. (_Keep track of the costs of the project(hosting, hardware, compute etc..) these costs can be covered by donations. In order to include remuneration for your worked hours in the costs of the project, you may have to create a separate legal entity that contracts you to work on the project._) | ||
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Suggested change
| - If you are not a Manufacturer and you are legal person (an organisation that has a legal personality, like a business, foundation or charity), a relevant criterion is whether the open source project is "intended for commercial activity". In that case, read the FAQ entries on the "Open-source software steward". | |
| - If you are not a Manufacturer and you are a natural person (an individual), you are out of scope, that is not subject to the requirements of the CRA. |
handle manufacturer case first, clarify open source steward as per @maertsen 's proposal Co-authored-by: Maarten Aertsen <[email protected]>
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… source project is in scope of the CRA?"
This pull request contains an initial response to the question "What criteria determine whether an open source project is in scope of the CRA?".
It is not ready to be merged, as some legal checks are required, and the segments on Open Source Stewards and manufacturers have not yet been written.
It addresses issues:#16, #21, #33, and #64