Creators seldom do not appreciate their intellectual creations being exploited and built further upon by third parties for free, however to the contrary, the software development industry is increasingly witnessing the opposite trend. For the growth of the software developing community at large, many major developing companies such as Lunix are indulging in the trend of providing ‘free software’ i.e. making the software developed by them accessible to the public for reuse and modification, without having to pay for it, under the terms of ‘Open Source Licenses.’ (“OSLs”)
Software Programs under the laws of most jurisdictions are categorized as ‘literary works’ capable of being protected under Copyright Law. In certain situations, the software may also be eligible for Patent protection, and for the sake of uniformity throughout the article, the author shall refer to both forms of Intellectual Property as ‘Copyright’.
The US Copyright office received its first submission for copyright for software from North American Aviation in 1961[1], and the trend continued, until the GNU manifesto was published in 1985 by Richard Stallman, an American software programmer asking for support in developing the GNU operating system, a software for which no one will have to ‘pay’ for permission to use[2]. Stallman made a bold claim that all software should be free. His movement gained worldwide support and momentum from the developing community and he later went on to incorporate the ‘Free software Foundation’ a non-profit with a worldwide mission to promote computer user freedom.
The software developer community under the stewardship of Stallman has been advocating for the ‘source code’ of the software to be made available to the public for reuse and modification, and even most global businesses including the fortune 500 companies have acknowledged that it benefits not just the developing community, but also the software creators who benefit from the reduced costs and the constant introduction of new features by enthusiastic developers. Therefore today, most software programs are being released to the public under the terms of various OSLs.
OSLs are essentially license contracts between the author and a user of a software component, which allows the use of the software, including commercial use, by the public at large, subject to the conditions mentioned in the license. The license specifies what a user can and cannot do. Without an OSL, the software is unusable by others as it is protected by copyright. Thus, licensing software under Open source does not in any sense imply that the creator has ‘let go’ of his Copyright in the same, rather it envisages a situation where the creator is licensing his copyright in a manner which allows reuse and modifications subject to the terms of the OSL under which the work is distributed.
OSLs are primarily of two types:
A. Copyleft
The term ‘Copyleft’ was coined as an antagonism to the proprietary and monopolistic rights created by the ‘Copyright law’ regime and suggested that intellectual property be reusable and modifiable without any restrictions, and therefore anything newly created using the original asset must also be further available for reuse and modification freely. Interestingly, the symbol for copyleft is also a horizontally mirrored copyright symbol (See image below)
Where a copyleft declaration has been made on a program, it implies that anyone is free to use the code, develop over it, share and modify the same, as long as they also declare their modified code, built upon the existing earlier code to be also open to being used by anyone. Examples of Copyleft licenses include GNU GPL and GNU LGPL. The GNU GPL is considered to be the strongest Copyleft license and is said to infect every code it touches. If any contributions to a code are made using components of software licensed under GNU GPL, the source code of the new work created will necessarily have to be released, and cannot be made proprietary.
- Permissive
A permissive open source license is a non-copyleft open source license that guarantees the freedom to use, modify, and redistribute, while also permitting proprietary derivative works, without asking for anything in return. In essence, permissive license terms have minimal restrictions on how the software can be used and grant the freedom to a software user to make his modifications to a software proprietary, with no obligation to release the source code of their created works. Examples of Permissive licenses include MIT, Apache 2.0 etc.
Balancing Open Source and IP Protection
While releasing software under the terms of an Open source license is revolutionary and challenges the notions of the Intellectual property law regime, businesses must be cognizant of the need to balance the two seemingly contradictory concepts. The following considerations must be kept in mind when making the decision of releasing software under Open Source license:
- Even though OSLs are not adapted to make money, creators can channelise their revenue streams from the exclusions granted by the licence for certain aspects. For instance one of the most important exclusion is ‘Trademark.’ Trademarks are excluded from all OSL otherwise, it would result in a dilution of the licensor’s trademarks to the point that consumers would not know what specific software it represents. The names and reputations of the licensors are also excluded from the OSL terms.
- Most warranties are excluded from the terms of OSLs. A revenue stream can be created by selling such warranties as well as other support and installation services separate from the software.
- Releasing software under the terms of an OSL does not restrict the dual or multiple licensing of the same. Owners of copyright can license their work a number of times and under different terms to different users. The software can be simultaneously licensed both under OSL and Non-OSL terms to separate users.
Protecting the Intellectual Property in Software while releasing them under OSL
Even when a developer chooses to release its software under the terms of an OSL, it does not in any way exclude the option of obtaining Patents/Copyrights on the same. It is advisable that a developer must always obtain the requisite IP protection over his software and then release the same under the term of an OSL as it serves the following benefits:
- The developer will retain the right to sue for infringement of patent/copyright if the terms of the OSL are breached by a user.
- The developer can release another version of the software which is not licensed under terms of an OSL, and make the same proprietary.
- The developer can assert their right against an infringer who is not a party to the OSL.
- The developer can license the Patent/ Copyright to others to create a revenue stream.
Thus, when making the decision of releasing the software under OSL, due consideration must be given to the business needs and aspirations of the developer company. If the sole intention of the developer is to gain profits from the software, releasing the software under an OSL may not be the best way forward. Even where the decision to release under OSL has been made, the particular OSL license with which to go forward must be very carefully selected after thorough consideration of the terms of the particular OSL. Legal assistance to understand the implications of the various OSLs and to identify the one best suited for a developer’s need must be sought to make a thoroughly informed decision.
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