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As anticipated, significant updates have been made regarding the applicability of the EU AI Act to open-source software under specific conditions; the initial ambiguity has been addressed in the latest corrigendum.
Key clarifications have been provided through the new version of the EU AI Act. In particular, the most relevant change relates to Article 2(12) explicitly states that the AI Act does not cover AI systems released under free and open-source licenses, except when they are marketed or utilized as high-risk AI systems, or fall under the categories of prohibited AI practices (Article 5) or transparency obligations (Article 50).
However, only a limited category of open source software is exempted since according to the recitals of the AI Act open-source AI systems are regulated if:
1. They engage in transactions involving the monetization of AI components, including sales, technical support, or services related to the AI component, or use personal data for reasons beyond enhancing security, compatibility, or interoperability—unless the transactions are strictly between microenterprises.
2. General-purpose AI models released under a free and open-source license pose a systemic risk, despite their transparency and open-source licensing, which does not exempt them from compliance with regulatory duties.
Importantly, simply making AI components available in open repositories does not constitute monetization. It seems that the EU legislator is adopting a very limited definition of open source software to exclude from the scope of the AI Act any software generating profits.
What’s next? The European Parliament plenary session are scheduled for April 22-25, 2024, where the approval of the final text is anticipated.
The best way of having the AI Act at hand in case of need is to download from the Apple or Android stores the DLA Piper EU AI Act app, which will include the final text soon. They are accessible in the version available for iOS and Android.
On the topic, you can read the article “AI Act Approved, What Shall Companies Do Now?“.
