The software world is often perceived as monopolised by the giant that is Microsoft. Try as they might to curtail the beast's power they have never really succeeded. Apple has been regaining ground in the past couple of years, but there is also another system that has been rising among the trenches. Starting off as a system known only by the techies and now reaching more of the internet generation, the "open source" philosophy is being applied to software development made by public collaboration.
Traditionally, in copyright, the author is traditionally the person to benefit from the proprietary rights conferred. Nowadays, however, there is a different reality, where more stakeholders are involved, including creators, users and consumers alike. Creators are themselves users and as such are interested in protection as well as free access.
As a result, a countermovement has arisen and is thriving: "copyleft". It highlights a need to maintain access to information for the purpose of fostering creativity. Copyright is viewed as being too formal, leaving no easy room for development and improvement to pre-existing software.
Open source falls within the school of copyleft. With open source, works which would normally be entitled to copyright protection are made available to all, with relaxed copyright restrictions. Open source counters the restrictiveness associated with intellectual property law. It is produced by online users accessing the source through the internet and contributing to its development. Open source challenges copyright which is seen by some to stultify creativity. It stems from a desire to move back to a purer form of creativity.
Bruce Perens, a founding proponent of open source, lists many advantages to open source software over the traditional model. The main points raised by him are that with open source it doesn't matter if you switch from a pc to a Mac, that if you encounter a bug you can fix it as quickly as the next day, that upgrades are developed more frequently and that you can install the software on more than one machine at the same time. Most of all, access is key in open source. On the other hand, copyright controls access to a work, who can access the work, and consequently, what can be done with the work.
Open source is not, however, a totally free culture. It does not advocate moving all existing works into the public domain. Key characteristics from copyright are retained, and these include, for example, the attribution of authorship always being maintained. What happens is that the author gives out the work freely, allowing other people to copy and distribute the work and make modifications to the work. It is a viral contract - because it is meant to spread from one person to another, to another, and so on.
Therefore, each time the software is redistributed, the recipient automatically receives a license from the original licensor to copy, distribute or modify the work - always subject to the licence's terms and conditions. The same terms and conditions must be transferred freely to the next person. So there is no commercialisation anywhere in the chain. This is where open source differs to the creative commons licence, which is also a copyleft licence but allows a certain degree of commercialisation.
All models are in fact based on copyright in the first place. Copyright is therefore still the starting point, and key tents of copyright law, especially concerning authorship and attribution, are retained. In fact, the person making subsequent alterations and copies of the work must always identify the original author as being the first author of the work. Obviously open source then departs from copyright, and the exceptions and free uses allowed in copyright do not apply to an open source licence - raising many questions about freedom to contract, and statute-granted exceptions and limitations being ignored.
However, the beauty seen and the antidisestablishmentarianism embodied in open source meant that it was hailed by all seeking to remove the constraints of copyright. Some of the more well-known works developed with an open source licence are the Linux operating system and the Mozilla Firefox internet browser.
The biggest victory for open source to date has just taken place in the US where the Court of Appeals of the Federal Circuit has upheld a free copyright licence. Put simply the court held that open source licences can be classified as a type of copyright licence and expire if one fails to abide by their terms, thus rendering that person guilty of infringement, therefore entitling the licensors to infringement relief. We now wait eagerly for what courts in Europe have to say on the subject.
Dr Rizzo specialises in intellectual property law and art law with Fenech & Fenech Advocates
Traditionally, in copyright, the author is traditionally the person to benefit from the proprietary rights conferred. Nowadays, however, there is a different reality, where more stakeholders are involved, including creators, users and consumers alike. Creators are themselves users and as such are interested in protection as well as free access.
As a result, a countermovement has arisen and is thriving: "copyleft". It highlights a need to maintain access to information for the purpose of fostering creativity. Copyright is viewed as being too formal, leaving no easy room for development and improvement to pre-existing software.
Open source falls within the school of copyleft. With open source, works which would normally be entitled to copyright protection are made available to all, with relaxed copyright restrictions. Open source counters the restrictiveness associated with intellectual property law. It is produced by online users accessing the source through the internet and contributing to its development. Open source challenges copyright which is seen by some to stultify creativity. It stems from a desire to move back to a purer form of creativity.
Bruce Perens, a founding proponent of open source, lists many advantages to open source software over the traditional model. The main points raised by him are that with open source it doesn't matter if you switch from a pc to a Mac, that if you encounter a bug you can fix it as quickly as the next day, that upgrades are developed more frequently and that you can install the software on more than one machine at the same time. Most of all, access is key in open source. On the other hand, copyright controls access to a work, who can access the work, and consequently, what can be done with the work.
Open source is not, however, a totally free culture. It does not advocate moving all existing works into the public domain. Key characteristics from copyright are retained, and these include, for example, the attribution of authorship always being maintained. What happens is that the author gives out the work freely, allowing other people to copy and distribute the work and make modifications to the work. It is a viral contract - because it is meant to spread from one person to another, to another, and so on.
Therefore, each time the software is redistributed, the recipient automatically receives a license from the original licensor to copy, distribute or modify the work - always subject to the licence's terms and conditions. The same terms and conditions must be transferred freely to the next person. So there is no commercialisation anywhere in the chain. This is where open source differs to the creative commons licence, which is also a copyleft licence but allows a certain degree of commercialisation.
All models are in fact based on copyright in the first place. Copyright is therefore still the starting point, and key tents of copyright law, especially concerning authorship and attribution, are retained. In fact, the person making subsequent alterations and copies of the work must always identify the original author as being the first author of the work. Obviously open source then departs from copyright, and the exceptions and free uses allowed in copyright do not apply to an open source licence - raising many questions about freedom to contract, and statute-granted exceptions and limitations being ignored.
However, the beauty seen and the antidisestablishmentarianism embodied in open source meant that it was hailed by all seeking to remove the constraints of copyright. Some of the more well-known works developed with an open source licence are the Linux operating system and the Mozilla Firefox internet browser.
The biggest victory for open source to date has just taken place in the US where the Court of Appeals of the Federal Circuit has upheld a free copyright licence. Put simply the court held that open source licences can be classified as a type of copyright licence and expire if one fails to abide by their terms, thus rendering that person guilty of infringement, therefore entitling the licensors to infringement relief. We now wait eagerly for what courts in Europe have to say on the subject.
Dr Rizzo specialises in intellectual property law and art law with Fenech & Fenech Advocates