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

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