In the case of custom programming, does it make a difference in the context of the CRA whether the software is handed over directly to the customer or contributed to an Open Source project?

Answer:

Yes, as a rule, this makes a difference. Paid contract development for an Open Source project does not fall within the scope of the CRA. Recital 18 states:

„The mere circumstances under which the product with digital elements has been developed, or how the development has been financed, should therefore not be taken into account when determining the commercial or non-commercial nature of that activity.”

However, it is questionable whether the applicability of the CRA can be circumvented by the fact that the commissioned developer places the purchased software in a public repository as Open Source software instead of handing it over directly to the client.

Most recent content update of this FAQ: September 2025

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