India: Open Source Software In The Shoes Of Intellectual Property


In the recent years open source software has altered the contour of software industry. Open source and commercial software are the prominent models of software licensing. Open source software (OSS) licensing model, unlike the conventional proprietary software development model of limited access, allows users of the software under certain terms and conditions, to redistribute, modify and add to the software program. OSS also emphasizes the users of the software on unrestricted accessibility and availability of source code.OSS has been developed through a collaborative effort in which larger groups of people interact and contribute the elements of the final software. Conventional software development is governed by IP laws which were predominantly practiced over the past few decades.

However, the main contention for the conventional application of different forms of IPR to software is that it is better suited for protection rather than facilitating the practice of the rights. Following are the various forms of IP Laws that can be applied to OSS.


Open source deals with sharing of software's designs and components among the users. The concept of trade secret as a legal tool is to ensure protection for software. However, considering the success rate of open source software, protecting ideas as trade secret pose a problem for developers, thus leading to an inference that sharing ideas in software domain delivers higher benefits to its developers.

Some of the disadvantages of protecting source code as trade secrets are insufficient protection, data security and user's privacy risks, fewer incentives to developers. On the other hand, some of the benefits of OSS development model are competitive improvisation, skills enhancement, user-driven innovation, etc. Hence, OSS model proves to be more socially efficient whereas the trade secret model offers the developers a choice between bearing the costs of inefficient software development and monitoring a dominant firm to prevent possible abuses.

Therefore, the scope for trade secrets form of IPR and OSS to co-exist is a rare possibility.


According to copyright law, the original author/creator owns the exclusive right to reproduce a work by default, subject to certain conditions. The owner of a copyright can license or sell the right to copy his work to others under certain terms and conditions. Hence violating certain terms and conditions lead to infringing on the copyright.

'Copyleft' is a term widely used in open source licensing. Copyright laws are used by an author to prohibit others from reproducing, distributing or adapting copies of his work. Contrary to the term 'Copyright', 'Copyleft' allows an author to reproduce, adapt or distribute copies of his work but the resulting copies are bound to certain license agreements. Thus copyright laws enable the creators of OSS to make code available through an open source license usually the General Public License.

In SCO Vs IBM case1, SCO claimed that IBM infringed their copyright and trade secrets, by illegally incorporating SCO's proprietary UNIX code into open source Linux operating system and subsequently demanded that Linux users needed a license from them, for parts of the Linux code.

The SCO Group sued a number of companies for donating UNIX code to Linux. The court ultimately gave a verdict that 326 lines of code in Linux kernel were potentially infringing. From the case mentioned above, it is evident that enforcing an open source license is using copyrights laws in full force. Therefore an open source license is obviously using copyright laws to protect the way the author's work is used.


Moral Rights are very much applicable to open source mainly because the development of such a model is highly dependent on the individual contribution of users/developers of the community as a whole. In certain countries, where moral rights of the authors are legally recognized, violation of open source licensing terms would constitute a violation of the author's moral rights. Though the GPL covers a broad scope of protection, the modifier's action can still be restricted by the author based on Section 14 of the Copyright Act. By resorting to such a provision, the author retains a right to prevent any impairments of his work.


Software patents are criticized extensively by the open source community. OSS model is designed to disseminate software license as widely as possible. Open source proponents seek to revisit patent jurisprudence in the context of software programs altogether, citing it as an 'undeserved reward'2. Free and open source licensing has several implications such as targeting wide audience and sprawling rights that multiply with the every adaptation of the software. Having said that, several technology companies and its developers discourage software patents owing to the fact that software inventions are too abstract and closer to mathematical algorithms than concrete industrial machines.

Free and OSS community envisages a model which involves the practice of writing and releasing software codes freely. Such a model, offers a license to its licensee, the right to modify and redistribute the software. When software is distributed by someone in such a fashion, depending on the terms of the license the recipients will gain an identical sub-license from the distributor or a direct license from original licensor.

All free and OSS licenses permit free adaptation of the material. Such a license also allows for free distribution of these adapted materials. Some licenses such as GNUGPL, has made it mandatory that the adaptation of the software it covers must be distributed under the same license which is termed as 'copyleft'.

From the aforesaid, it is evident that free and OSS licensing model provides a cheaper route for use and distribution of potential licensees who do not want to pay for a license. Release of source code disqualifies the opportunities to obtain patents on processes embodied in the code

Thus, the patent form of protection is not a popular choice among the practitioners of OSS community owing to the aforesaid difficulties as well the delay in implementing patent sharing.


Open source developers exhibited sophistication in the use of trademark law instead resorting to certification marks so as to indicate that a particular software comply with the requirements of open source scheme for example 'OSI Certified' mark affixed by the Open Source Initiative for software complying with their Open Source definition. The term 'Copyleft' by itself has acquired a distinctive trade use.

Therefore, the use of certification marks ensures greater flexibility and avoids several hassles like policing of the mark and ensuring proper arbitration and imparting equal responsibility on all the developers3.


Earlier computer programming was done on one-to-one basis and internet was still established as a medium of connectivity. However, it is not the case anymore. Software is rarely individually tailored, but mass produced as a team work collaborating with global teams. Open source development model has become a practical alternative to commercial/proprietary software. Therefore, OSS model plays a superior role in software industry.

Further, open source offers a bundle of incentives by reducing IP benefits. However, compared to patents, OSS model expedite discovery through automatic disclosure. It is to be noted that such a model is not viable and cannot operate in every other field where patent benefits dominate.


1 Caldera Sys Inc v Int'l Bus Mach's Corp (D.Utah 2003) (No. 03-CV-0294).

2 Rowe K, Why pay for what's free?: Minimizing the patent threat to free and open source software, John Marshall Review of Intellectual Property Law, 7(2) (2008)595.

3 Vikrant Narayan Vasudeva, Open Source Software Paradigm and Intellectual Property Rights, Journal of Intellectual Property Rights, Vol 17, November 2012, pp 511-520

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions