Definition 5.1.1.
Intellectual property or IP refers both to the "property" that is created by efforts of the mind and to the legal rights related to this property.
Section 5.1 About Licensing
An open source license formalizes what people are permitted to do with the material that is open source and under what conditions. For example, this might address whether you are granted the rights to use, modify, or distribute (commercially or non-commercially) the material.
Many people find licensing to be one of the more confusing aspects of open source software. It is our hope that the simplified treatment from this chapter will provide the reader a better understanding of the key issues.
When you author a creative work, such as code, you automatically hold exclusive copyright to the work by default. Unless you include a license that specifies otherwise, nobody else is permitted to copy, distribute, or modify your work without opening themselves up to legal action by you. Once the work has other contributors (who then each become a copyright holder), “nobody” includes you.
If that is not a legal mess you want to get into, your code should include specific terms and conditions for what different people are allowed to do with it, in the form of a license.
Disclaimer: It is not the goal of this chapter to provide legal advice. The goal of this chapter is to provide a starting point to help you make an informed choice by providing information on popular open source licenses in a simplified fashion. If you have any questions regarding the best license for your code or any other legal issues relating to it, it’s your responsibility to do further research or consult with a professional.
Subsection 5.1.1 Important IP Terminology
Here we give a few definitions that are important for the remainder of the chapter. These are intended not as legal definitions but to help in understanding the common usage of these terms.
For the first term, Intellectual Property, you can think "property" (like software) that is "intellectual" in nature, but it refers to more than just the property itself.
For the term, copyright, you can think restrictions on things like the "right" to "copy". The following definition comes from the Copyright Office of the US government 1 . You will note that copyright refers to much more than solely the right to copy or not to copy.
Definition 5.1.2.
A copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.
A copyright offers the copyright owner exclusive rights like:
- Private use
- Commercial use
- Distribution
- Modification
Copyright also provides the owner of copyright the exclusive right to authorize others to utilize some or all of these rights, subject to certain stated conditions and limitations.
The next term, copyleft is one that you may not have heard before because it has emerged from the open source movement. It is also a very clear word play on the word copyright and suggests having "left" some of the author’s "rights." And, that is indeed what it is, but don’t assume that all rights have been abandoned by the author, far from it!
The Copyleft Foundation 2 states the following as the essential innovation of copyleft in section 2.2:
Definition 5.1.3.
Copyleft uses the copyright holders’ controls on permission to modify the work to add a conditional requirement. Namely, downstream users may only have permission to modify the work if they pass along the same permissions on the modified version that came originally to them.
Some Country-specific IP Terms.
Some countries have a notion of fair use or fair dealing which are somewhat difficult to understand but even so are critically important because in many countries limited, specific uses can be made without permission from the copyright owner.
Definition 5.1.4.
In many of the common law jurisdictions of the Commonwealth of Nations, fair dealing allows for copying of copyrighted materials if and only if they are used for a purpose that is among a list of purposes that is specific to each country.
For example, in a large number of the countries that permit fair-dealing uses, copying of copyrighted material for the purpose of review and criticism or for the purpose of reporting the news are both considered "fair dealing."
Definition 5.1.5.
In the United States (US) and a few other countries a notion called fair use allows copying of copyrighted material if done for a "limited" and also “transformative” purpose. For example, in the US, fair use is often used by various types of critics to quote a limited portion of a work and by professors to make a limited portion of a work available to their students.
What do "limited" and “transformative” purpose mean? Well, many millions of US dollars have been spent arguing just that question. If you really want to just see how confusing the notion of fair use is in the US, see Google v. Oracle 3 which ultimately ended up in the US Supreme Court battling exactly that question.
Because the notions of fair use and fair dealing vary significantly by country, researching the laws in your specific country is highly advisable.
Disclaimer.
These explanations and definitions are not intended to be used in any legal way and are offered without warranty of any type, either expressed or implied. In no event shall the author or other contributors be held liable for any claim, damages, or other liability arising from or in connection with these definitions or explanations.
Checkpoint 5.1.6.
- To grant exclusive copyright to the author of the work.
- While the section mentions that authors automatically hold exclusive copyright to their work by default, licensing serves a different purpose than just granting copyright.
- To provide a legal framework for others to use the work.
- Licensing sets rules and conditions for how others can use a creative work, such as software, without infringing on the author’s copyright
- To allow unlimited copying and distribution of the work.
- Licensing is meant to regulate how others can use the work, not necessarily to allow unlimited copying and distribution without any conditions.
- To protect the creators’ products from being illegally sold for commercial purposes.
- While one of the reasons for licensing is indeed to protect the creators’ products from illegal use, licensing is not solely focused on protecting against illegal activities.
What is the primary purpose of licensing creative works like software?
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