Open Source Software and Copyright Law
‘What is worth copying is prima facie worth protecting'1is the genesis of intellectual property rights. These rights refer to the property that is a creation of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce. The computer software industry has developed in the recent due to which the “open source software” or “free software” is gaining widespread attention. There has been an increased use and acceptance of computers with its fast – paced development but the software industry struggles to meet the demand of its users. Now, what users seek are rapid releases, quick bug fixes and easy customization. The critics have a notion that today’s software industry cannot survive in this growing market without taking some revolutionary steps. The open source movement revolves around the notion of making software “open source” or making the source code available to everyone. The word “open” refers to making source code freely available to other developers so that they can enhance the software, modify the code, or fix software bugs and glitches.2 The word “source” refers to statements written by a software programmer in a programming language, such as C, C++, Pascal, Fortran, Java or Basic.3 As computers do not understand our language these statements instruct the computer as to what commands to process. They can only understand 'machine language' or 'machine code' i.e. instructions consisting of a series of 0s and 1s. Software tools convert source code into object code. It is actually the object code that the computer executes and understands and it is very difficult for humans to read or modify this code.
A source code of a computer program if it is open is a literary work within the Copyright Act. However often it is not disclosed and kept as trade secret. Software is very easy to copy but very difficult and expensive to create; it is very important to protect software through copyright law. Copyright offers an inexpensive means of protecting software from unauthorized copying and misappropriation as in today’s digital world communications move around the world not in 80 days but in 8 seconds and copying is as easy as pressing a button.4
Role of Berne Convention in Open Source Software
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 1986 The Berne convention for protection of literary and artistic works provided that computer software (object code and source code) and compilation of data are to be protected under the Copyright Acts. Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPS) is part of the charter establishing World Trade Organisation (WTO). Every member of the WTO (India is a member) has to accept it. We have amended the Copyright Act by two amending Acts namely Act no. 38 of 1994 and Act no. 49 of 1999. These amending Acts amended section 2(o) of the Copyright Act to change the definition of the word 'literary work'. It now includes computer programme as well as computer database. The result is that not only the computer programmes (subject code as well as object code) but computer database is also protected as a copyright. In India infringement of a copyright is a penal offence and civil remedies (injunction damages etc.) are also available (TRIPS articles 41 to 50, 61). By the two amending Acts consequential amendments were also made in other sections to make enforcement more realistic.
The Concept of Copyleft v. Copyright
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 will survive with the creator by some 50-100 years depending on the...
Please join StudyMode to read the full document