The Open Source trials: hanging in the legal balance of copyright and copyleft

For those meddling in open source software affairs, compliance with licenses is a very hot topic. In the last 2 years we have witnessed the licensing FUD (Fear, Uncertainty & Doubt) giving way to legal clarity with more and more relevant cases proving the acceptance of open source licenses by legal systems around the world.

The secrets of Copyright – Open source software licenses are based on copyright law. The notion of copyright has a long history; some hundred years ago copying was hard to come by and a threat only to a few. In contrast, in today’s digital world copyright is much more important as communications move around the world not in 80 days but in 8 seconds; and copying is as easy as pressing a button.

The story of international copyright starts with the Bern Convention in 1880, while the most prominent copyright law is probably the US Copyright Act from 1978. The Bern Convention was initiated by the French Author Victor Hugo in order to protect the rights of European writers against the illegal copying of books which was taking place on the other side of the Atlantic at that time.

In copyright law, the original creator has the exclusive right to reproduce a work by default, subject to certain conditions; firstly the work must reach a threshold of originality, and secondly if the work is created under commission, the person with the chequebook often becomes the copyright holder. The Fair Use doctrine also sets aside some good reasons to copy a work – for example for commenting, news reporting or research – without infringing on copyright.

Only the owner of a copyright can license or sell the right to copy the work to others, under terms and conditions of their choice. Violating these terms and conditions is in principle infringing on the copyright.

Copyright is also sticky. It will survive the creator by some 50-100 years depending on the application law at a country level. Once the copyright expires, the work enters the public domain and is no longer protected by copyright laws. Whilst open source software is by definition publicly available, this does not mean that it is freely available in the public domain as it is still under a license, be that a copyleft or copyright license.

Copyleft vs CopyrightContinue reading…

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