There is a legal debate about free software or open source software, in particular in relation to the protection of copyright. The fact is that there is confusion about whether using free software infringes the intellectual property protection.
The development of free software or open source software is impressive and the proliferation of free software is a direct result of the introduction of internet.
On the other hand, the development of the internet is primarily based on software solutions, so free software and internet are interactively related.
Free software, both in the form of source code and the object code form is protected by copyright.
According to EC Directive 91/250/EC, the legal protection of computer programs established the principle according to which the programs must be protected by copyright, as literary works within the meaning of the Berne Convention – Paris 1971.
This directive protects the program copying, the possibility of translation, adaptation, arrangement or any other program modifications and/or the ability to distribute the program to the public.
With free software, the independent software dissemination by manufacturers is guaranteed on a large scale with low acquisition and upgrades, and the development of expertise and innovation is in general facilitated.
One could say that the exploitation of software can be conducted in two ways: either the classic protection afforded by the exclusivity of intellectual property rights by granting generally only use rights; or a free software licence, which grants greater rights.
The mobilisation of free software started with Richard Stallman who wanted to repair some damage to his printer. The printer manufacturer refused to give him the source code so that he would be able to do so. This led Mr Stallman to launch the FSF (Free Software Foundation) that turned the freedom of access to the code into an established principle. According to the definition of the FSF, “free software addresses the users’ freedom to run, copy, distribute, study, change and improve the software”. If the use gives the freedom to do so, then the software program is regarded as ‘free’.
A new term – ‘copyleft’ – has now been coined as opposed to the word known to all, namely copyright.
Generally, copyleft means that the distribution of work and modifications are permitted with the same licence so both the source code and executable code of the project is nevertheless accessible.
With copyleft, we avoid appropriating the work of others who might be taking ownership of the work as their own work.
A new licence for use of free and open source software in EU member states, named EUPL, was created and approved by the European Commission and has the same validity to any of these countries. The last version (EUPL v.1.1) was approved by the European Commission in January 2009.
The EUPL’s copyleft licence entails the obligation to copy the software under the terms of the licence. The licence is valid for any software made available under the respective terms. The licensor has to put the note ‘Licensed under the terms of the EUPL’ or paraphrase its intention to license under the terms of the EUPL. Software distributed under the EUPL is distributed “as is”, unless there is another written agreement.
In my opinion, the theory that the free software or open source software undermines the intellectual property rights and does not promote knowledge and innovation is incorrect. In simple terms, the following applies: unlike with proprietary software vendors, open source vendors do not provide guarantees or indemnities for copyright infringement.
Open source developed the Apache Web Server that is used to run the majority of web servers in the world and the BIND (Berkeley Internet Name Domain), a base for names of websites instead of IP addresses to identify sites.
Therefore the contribution of free software in the development of relevant technology and innovation is unquestionable.
Chryssa Tsiotsi is a lawyer specialising in information technology and telecommunications laws.