Article

Licenses of right

With a new version due out soon of the GNU General Public Licence, open source software is back in the news (again)!

Background

Under copyright law, the developer of a software program is the first owner of the copyright in the software. The copyright owner has various rights, including the exclusive right to copy, modify and distribute the software. Licences to use software can be granted under this copyright and most readers will be familiar with the provisions of standard licences, which rely on copyright law to preclude copying, modification or redistribution except in a few limited situations.

Most readers will also be aware that under most software licences, the software is supplied in object code only i.e. machine readable form. It is the source code of the software that is usually required before software can be modified or enhanced. Most open source software is released in both object and source code and the licences under which the code is supplied authorise copying, modifying and redistribution of the software to which it applies - albeit subject to certain requirements and conditions. One such requirement is generally that if you redistribute the program, you must also release the source code for that redistributed software, including the code to any modifications you have made. The idea behind open source is that users and developers are supported in their use of software and able to obtain code relatively easily. The most commonly used form of open source licence is probably the GNU General Public Licence.

GNU General Public Licence

This was initially released in 1989 and since its inception it has been subject to constant criticism from open source opponents about its enforceability and validity. Most of the enforcement cases are, it is widely reported, based on the failure of licensees to comply with the source code distribution requirement. Indeed, it seems that some developers have been using the open source code as a short cut to producing their own software, without fully appreciating the obligations to which they were subject - the code was wrongly considered to be “in the public domain”. This is a misconception which is not just restricted to open source software. For example many e-commerce companies find that their website content is copied for exactly the same reason. It is important to realise that the fact that something is in the public domain does not mean it is not protected by copyright or other rights. Consent to use such material should therefore be obtained before using it.

The GNU licence provides that the licence to use the code will continue provided that all of the requirements set out in the licence are met. Failure to do so will result in the automatic termination of the licence. It is thus the retention of copyright ownership in the open source software which enables the licence to be enforced and the software protected.

Comment

With version 3 of the GNU General Public Licence due out soon, the likelihood of a successful challenge to the validity or enforceability of the licence is dwindling. This is not least because the new version of the licence incorporates express provisions relating to a copyright owner’s rights in relation to a breach of the agreement, and spells out that modifying a program without accepting the licence terms is copyright infringement. As a result, users of open source software who want to modify and redistribute it should be aware that any non-compliance will be viewed seriously. We would also advise readers commissioning developers to design a program to be specific on whether or not use of open source software is acceptable so that ownership of the intellectual property rights is properly clarified at the outset.

For further enquiries please contact Genevieve Mead on 01892 701308 or email genevieve.mead@
ts-p.co.uk.

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