“There is nothing new under the sun” – a fact truer than ever in the information age. More specifically, open-source software has propelled the world into an era where developers can spend their time providing solutions based on the work of others instead of reinventing the wheel, due to lower input costs, the scale of collaboration and the upstream benefits that it provides.
One might ask whether open source code is truly free from copyright and if it can be commercialised. Before answering this, it is important to have a clear understanding of what is meant by ‘open-source’.
Essentially, open source software is software subject to a license agreement which allows the software to be freely accessed, used, changed, and shared in both modified or unmodified form. The extent to which the software is open source is a matter entirely regulated by the terms and conditions of the licensing agreement.
There are two mainstream types of open source software namely “copyleft” and “permissive” open source software.
Copyleft software refers to software subjected to terms and conditions that permit derivative works and/or forking, however, these works are required to be subjected to the same license applicable to the original works. In essence, copyleft licenses ensure that the software remains “open” perpetually.
Not all open source software is copyleft but may be “permissive” software, which permits the use of open source software or parts thereof in software with other types of licenses, including, most importantly, proprietary licenses. In effect, permissive licenses guarantee the freedom to use, modify and redistribute the original work, however, it provides for the proprietary licensing of any derivative works.
In practice, this would mean that if a software developer uses and/or incorporates permissively licensed software – often referred to as “non-copyleft” – in the creation of a derivative work “Y” and places restrictions on the use and/or redistribution thereof, by means of a proprietary software license, and commercializes Y, it will enjoy copyright protection. However, if a developer uses and/or incorporates open source software which is copyleft licensed, in the production of Y, that developer will be unable to enjoy copyright protection and cannot seek to institute copyright infringement and, therefore, will be without recourse should someone else copy and/or incorporate Y elsewhere.
A common misconception is that open source software, particularly copyleft-licensed software, is unable to be commercialised, which is not the case. Open source software is capable of being commercialised despite being available everywhere and unable to enjoy copyright protection.
Yes, you may, in fact, sell and/or distribute open-source software and receive money for it despite the fact that you have not written the original software. It is to be appreciated that open-source software does not jettison other intellectual property rights that may be vested in them. The era of access to information has made it imperative to register various forms of intellectual property rights, for instance: – a registered aesthetic design to ensure exclusive use for your user interface, and a trademark for your brands may provide protection where copyright protection can no longer.
By Stefaans Gerber & Tim Laurens
