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Software and the law
Software and the law

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4 IP rights: Common and public goods

An alternative approach to the one described in the previous section – based on private property and market forces, with protection in the form of both copyrights and patents – is that software and information should be viewed as public goods and be freely available. You saw how this works in general economic terms, but how does it work out legally?

The idea would be to freely distribute software for anyone’s use, with no requirement to pay fees and no constraints on what the software can be used for. However, this free distribution would be taking place in an environment in which software copyright and patents are already established and in active use. The free distribution of software could still run into problems as people attempted to take ownership of that software as private property and used the law to give themselves exclusive rights to the intellectual property. Thus it has become common practice to use intellectual property law to protect ‘free software’, which is software as a public good. This turns out to be desirable anyway, since there may be some basic rights, like moral rights, that you would always want to protect – so that for those jurisdictions that do not treat such rights as inalienable, these rights have to be respected anyway. These protections are set out in standard licensing agreements, of which two are in increasingly widespread use within the free and open-source movement.

  • The GNU General Public License and the Free Documentation License were established by the Free Software Foundation for software and documentation respectively. The intention is to ensure everyone is free to copy and redistribute the work with or without modification and commercially or non-commercially, while crediting the original authors without making them responsible for any modifications. These are the original public goods licences, though they have evolved over the years. These licences contain a number of specific stipulations that must be adhered to. For more on GNU licenses, see The GNU Operating System [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] .
  • The Creative Commons License for a copyrighted work is somewhat less restrictive than the GNU licences, but it is gaining considerable popularity. This licence enables you to reproduce and distribute the work, incorporate the work into a larger collection, and create and reproduce and distribute derivative works. This can be done in any medium. The Creative Commons License must be passed on to recipients of the distributed work, without any further imposed conditions. The original copyright notice must be passed on intact, in particular to identify the original creator of the work. The distribution of a work should not be one primarily for commercial gain, and where such gain is made the licensor retains the right to collect royalties. For more on this topic see the Creative Commons Legal Code.

Software as public goods can be protected by intellectual property law.

The use of GNU and Creative Commons licences has been a source of dispute between the commercial software development industry and the open-source movement. It has been claimed that the conditions laid down are infringements of human rights. The debate over public goods led to interest in the United Nations, where it is believed that many services, including education and the use of the internet, should be viewed as public goods. This will clearly be an area of change and growth in the decades ahead. Fortunately you will be able to track those changes via the internet, where so much valuable information is posted as a public good.