COPYLEFT AND LAW

The authors of this blog are Vinod Parmar and  Vijay Chauhan BA.LLB. (Hons), IVth year Students of SoL of University of petroleum and energy studies (UPES), Dehradun.

Copyleft: a legal concept beyond Copyright?

The open-source movement or the copyleft licensing basically stands against the current ‘proprietary’ model of copyright protection for software[1] because they believe that the proprietary model restricts the benefits to the society.[2] Since copyleft is a play on the word copyright, it is construed to be an antonym to the concept of copyright. It is believed to be the antithesis to copyright in the sense that copyright tends to create a monopoly right over original work by their author, while copyleft propagates open-source software wherein it is believed that work should be available to people for use, modification, and redistribution. Copyleft is not an antonym to copyright but it uses the existing legal foundation upon which the proprietary software exists.[3]Where in the existing proprietary model, copyright is used to exclude, copyleft licensing used the same copyright model to promote inclusion[4]. The modus operandi of the copyleft license is to copyright software and then use the exclusive rights to mass license for its use, improvement, modification, and redistribution with a contingency that the following user needs to license with the same terms. [5] Copyleft licensing is not an antithesis to copyright, in fact, it is entirely dependent on copyright law[6].

Copyleft As A Contractual Obligation

Copyleft is a contractual solution to stop companies from converting free software’s into proprietary software. General Public License is such a standard contract which ensure that the software is passed on, making it obligatory for the redistributor to pass along the same freedom to further copy and change it. Copyleft is not a right in itself like copyright, patent, or trademark. It is a contractual obligation that the licensor and the licensee agree upon while transacting for the software code. The copyright holder of the software used his primary distribution right as a contingency in the license agreement that the user needs to pass on the same rights given to him by his licensor. GPL is one of the most regularly utilized copyleft license agreement. The prelude understands like.

The objective of the free software is achieved by licensing through two means:

a. By protecting the software through the existing copyright laws;

b. By providing the users a license, giving them the freedom to use and modify the software, provided they pass along the same rights.

This can be reiterated by looking at the section clause of the agreement which reads like. Section 1 for example states: You may copy and circulate verbatim copy of the Program's source code as you get it, in any mode, gave that you obviously and fittingly distribute on each copy proper copyright notice and disclaimer of guarantee; keep unblemished all the notification that allude to this License and to the nonappearance of any guarantee; and give some other beneficiaries of the Program a copy of this License alongside the Program.

The thing to notice that the license gives the user the freedom to make monetary changes when passing the copy until it is consistent with the general free software characteristics. 

The restriction against using the software as commercial software is specified in the following section:

You may change your copies of them or any bit of it, consequently shaping a work dependent on the Program, and copy and appropriate such alterations or work under the terms of Section 1 above, given that you likewise meet these conditions: You should cause any work that you circulate or distribute, that in entire or to some degree contains or is gotten from the Program or any part thereof, to be licensed in general at no charge to every single outsider under the provisions of this License.

The software and its derivatives should be available to the public for free. A derivative user should get the same equal rights as given by the original licensor. This license has been termed as ‘viral contract’. The contract spreads in a viral form as every licensee has to include the same terms of the copyleft agreement in all he further licenses as a part of their contract with the original licensor. The copyleft agreement is a contract in the eyes of law and it fulfills all the basic requirements of a valid contract.

Validity of Copyleft Clause in India

In India, there is no specific law regarding copyleft. Validated only by existing laws regarding copyright and contract. In the case of TCS v. State of A. P^[7], The Supreme Court has held that ‘software’ is an Intellectual Property. It will be covered under Section 2(o) of the Indian Copyright Act, 1957 under literary works which includes computer programs. Open Source software and copyleft license is not specifically recognized under the Information Technology Act, 2002, the Copyright Act or the Indian Patent Act, 1970.

For the working of copyleft license agreement in India, Section 14 of the Copyright The act comes into action. Section 14(a) (ii) and 14(b) (i) allows the copyright holder of a computer program “to issue copies of the work to the public not being copies already in circulation”. This ambiguity in Section 14 regarding, whether the distribution should be free or not helps the developers under copyleft agreement to license and re-distribute their software for free. Also, Section 30 of the Act provides the copyright holder the right to license “any interest” in his work. The rights which are passed on by this holder to the licensee is equivalent to the rights attained by the assignee of the copyright. Section 19(3) specifically provides for an option to the licensor to license his work for free. This is further safeguarded by Section 19(2) which makes it obligatory on the licensor to specify the rights licensed, with the duration and the extent of it. Though the copyright law does not specifically recognize open source software but it does provide for enough protection for the copyright holder to enact a copyleft agreement within the legal framework of the country.

Another aspect whether these copyleft agreement fulfill the requirement of the contract law. Section 10 of the Indian Act provides for the ingredients of a valid contract which includes

a. Free consent

b. Competent to contract

c. Lawful consideration

d. Lawful object

e. Not expressly declared to be void.

The question before us is whether the copyleft agreement fulfil all these requirements. The first two requirements that are (i) free consent and (ii) competent to contract depends on specific facts. Contract act with case laws provides the laws regarding the above mentioned two and are case-specific. The main contention is whether there is consideration in the copyleft license agreement. In general understanding, consideration is something done in return for the benefit which we get in the contract. Section 2(d) of the Contract Act defines consideration. This definition makes clear that consideration need not always be monetary term. His is further appreciated by the court in Bhattacharji v. Gorilla Mahomed^[8].In this case the plaintiff started some construction work based on the faith of the promise by the defendant. The court held the agreement enforceable stating that the consideration of faith was a valid consideration.

Section 25 Explanation 2 clearly provides that the consideration in an agreement need not be adequate. Inadequacy of consideration is not a ground to hold a contract to be invalid. Thus, a copyleft agreement providing the same rights to subsequent users as given by the copyright holder and not to create a proprietary model of the software consists of valid consideration for the rights to use, modify and distribute the software. As discussed above that neither copyright law nor any other law in India has held the copyleft license to be illegal or void, thus fulfilling the requirement of the contract act. It is clear that a copyleft license agreement fulfills all the requirements of a valid contract. This makes any such license enforceable as a contract in the eyes of law. The licensor can sue a licensee for breach of contract. Not only that, but the copyright holder can sue the licensee for infringement of copyright.

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[1] S. Potter, “Opening up to Open Source”, 6 RICH. JL. & TECH., no. 2, 2004, at 24.

[2] N. Patel, “Open Source and China: Inventing Copyright?”, 23 Wis. INT'LL.J., no. 1, 2005, at 781.

[3] S. Dusollier, “Open Source and Copyleft: Authorship Reconsidered?”, 26 column. J.L. & Arts, no. 3, 2003, at 281

[4] C. McMains C & E. Seo, “The Interface of Open Source and Proprietary Agricultural Innovation: Facilitated Access and Benefit-Sharing under the New FAO Treaty”, 30 WASH. U. J.L. & POL'y 405 (2009).

[5] D. McGowan, “Intellectual Property Challenges in the Next Century: Legal Implications of Open-Source Software”, 1 U. Ill. L. Rev. 241 (2001).

[6] M. Maher, “Open Source Software: The Success of an Alternative Intellectual Property Incentive Paradigm”, 10 Fordham Intell. Prop. Media& Ent. L.J., no. 2, 2000, at 619. 

[7] A.I.R. 2005 S.C. 371.

[8] ILR (1886) 14 Cal. 64