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Creative Commons and other alternative licenses – GNU, GPL, Opensource

When a person (referred to as author) creates an original work (i.e. with his own skill and labour), he acquires copyright over it by default (unless he is an employee or working under a contract because of which copyright vests in another party). As explained before, acquisition of copyright over one’s own work does not require registration (although registration is useful). Once copyright expires, the work passes into the public domain and can be used by the general public.  The use of the work is only subject to the moral rights of the author.

In recent days, open-source softwares and open-source licensing have gained prominence. Open-source is a term which is used in context of works in which the creator has a copyright, but over which he has relinquished (or licensed) certain key rights (see below).

Traditionally, when a copyrighted work, such as a software is purchased, a user typically obtains a license to use the software. The terms of usage are governed by the End User License Agreement (EULA). In most standard software which is purchased off the shelf, a user does not get access to the source code, and is only entitled to use the software for personal purposes (without sharing it with anyone else).

In 1998, the Open Source Initiative (OSI) in US, had started defining the ambit of open source licenses. Several licenses qualified under the OSI’s definition as open-source – the GNU General Public License (GNU GPL), Academic Free License (AFL), Microsoft Public License, PHP License (the PHP language is open source, although a program made in PHP can be proprietary) are some examples. Similarly, the Creative Commons License is an open-source license for images and videos. Wikimedia Foundation (which is behind the ubiquitous online encyclopedia Wikipedia) also has a version of open source licensing for its content.

Works are considered to be open source if they meet the ten conditions stipulated by the Open Source initiative in California, US. Some of the conditions are – access to the source code of the software must be provided, not discrimination against specific persons/ groups or against certain purposes (e.g. prohibiting use for business, etc.), non-restriction of other software (e.g. it should not state that it can only be used with other open-source software), and so on. For the full list of conditions, visit the following link: http://opensource.org/docs/osd.

Further, the terms of most open source licenses require the license information to be displayed in every future copy of the work.  A license that is called ‘open source’ must be reviewed and approved by the OSI, to ensure that it meets the open source definition. Nevertheless, many people loosely use the term open source for works granted under similar license terms. 

Open source works can be used, modified and distributed to the public. They may even be sold. However, depending on the terms of the open-source license concerned, it is possible to restrict modification of open source software, or to start selling modified open source software.  Works which cannot be sold by a user, but can be used, modified and distributed (so long as they are not sold) qualify as copyleft works. Broadly, copyleft is a sub-category of open-source licenses.
Open source and free software are different – a software whose source-code is not available in the public domain but which can be used for free is a free software, sometimes called a freeware, but will not be considered open source.

i) Permissibility of profit-making activities in relation to open-source software

Merely because open source software are free to distribute and modify does not mean that the open source software industry does not make money. Red Hat maintains a Linux business that makes approximately $90 million in annual revenues, while Sun Microsystems has revenues of approximately $18 billion.

Although open source software is free, there are significant possibilities for a developer/ business focussed on open source programs to generate a profitable revenue stream. Interestingly, most open source licenses do not contain any warranties about the merchantability of the software (that is, on whether it is capable of being used for a particular purpose) or any provision for damage in case of harm or malfunction of the software, and a user must use such software at his own risk.

Sometimes, the software are not easily implementable by users who do not have a high level of technical specialization. In this situation, businesses have started making money by customization, value added services, integration and maintenance services, paid add-on modules (e.g. paid modules for Joomla or Drupal, which are open source content management systems), warranties or other assurances, offering support and troubleshooting contracts, etc. Some of these services are very profitable if they are marketed to large institutional clients.

Further, the business is also entitled to create its identity by branding its open source activities. Imagine the wide spread use of the free software and the branding it can generate for a company. One prominent example of this is one of the most celebrated companies of the Silicon Valley, 37 Signals, which created Ruby on Rails (a programming language which is widely used - Twitter was initially built on Ruby on Rails). 37 Signals has its very popular proprietary software and also earns millions from its workshops, conferences and other services. The branding earned by creating Ruby on Rails gave the company an enviable stature and widespread fame.

ii) Consequences of breach of an open source license
As per the amendment to the Copyright Act (which came into force in June 2012), alteration of rights management information (rights management information includes details of the author and terms and conditions regarding the use of rights) without authority or distribution of software with knowledge that rights management information has been is punishable with imprisonment of up to 2 years and fine. Breach of the terms of an open source license will be punishable under this provision.

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