Copyright or Copyleft: Which way to go?
B.L.S. LL.B
Mumbai, INDIA
What is Copyright?
The notion of copyright can be traced back to one of the Ten Commandments - 'Thou Shall Not Steal'. Over the years, this intellectual property right has gained tremendous prominence and significance. Copyright, in simple words, is a right that an author has over his creation. It exists in literary, dramatic, musical and artistic works, sound recordings, cinematographic films and now also in computer programmes and software.
Copyright is a negative right, in the sense that it prevents another person from copying the author's work. It also includes the exclusive right to distribute, translate, adapt and perform the work. A copyright in a work can also be assigned or licensed to a third party. Assignment means the transfer of ownership in the work, whereas licensing implies the conditional use of the work by a third party, the copyright still subsisting in the author. If the copyright in a work is violated, the owner can bring an infringement action in a court of law.
Rationale behind Copyright Protection
The protection of copyright in a work is indispensable today. The reasoning for copyright protection can be summarized as follows:
Ø To economically reward the author of a work for his skill, labour and judgement by giving him the exclusive right to exploit his work
Ø To prevent copying, exchanging, distribution and reverse engineering of an original work
Ø To encourage creativity and promote cultural identity
Ø To promote the progress of science and useful arts
Ø To balance the public right to information and ideas and the proprietary interests of the author
Copyleft: A Challenge to Software Copyright
The legitimacy of copyright is being challenged by an emerging concept of ‘Copyleft’. The concept originated with Richard Stallman, but came to public attention with the Linux Operating System developed by Linux Torvalds. Copyleft is opposed to the proprietary nature of copyright. Copyleft basically means that a person has the right to use, modify and distribute software and even improve upon it, without adding any restrictions thereon. As Stallman says, ‘instead of a means of privatizing software, it becomes a means of keeping software free’.
Linux Operating System
A user of the Linux Operating System has an implied license to modify, distribute and improve upon the Linux software. This gives him the opportunity to deal with any bugs and defects in the system immediately, without waiting for an upgrade from the proprietor. It is mainly due to this reason that Linux has over 10 million users worldwide!
Another advantage in using the Linux Operating system is that it is cheaper. As compared to Microsoft, a Linux user does not have to pay any license fee for use the Linux operating system or software. Companies are increasingly supporting Linux as over other operating systems. IBM, Dell, Intel, Siemens, Sony, Boeing and even Microsoft itself are using Linux!
Rationale Behind Copyleft
Ø Removing the monopoly over knowledge created by copyright. Proponents of copyleft are of the view that it is not necessary that in order to reward the creator of a work, he must be given exclusive rights over it.
Ø Taking away the monopoly right will not result in stagnation of innovation and creativity
Ø Encouraging experimentation and interchange with minimum constraints necessary. Copyright in computer programmes prevents a third person from adapting or fixing the programme. As source codes are unavailable, it in turn becomes difficult to develop new and better software. Further, students will not be able to see the mechanics of how computer programmes are created. Copyleft, however, allows the user to modify, alter and fix any problem without infringing any copyright in the programme.
Conclusion
It
is evident that copyleft cannot exist without copyright. In order to have
copyleft, there must first be copyright in a programme code, which is then
distributed to a person who is given the right to use, modify, improve and
redistribute the programme code.
From
the emerging market trends, it is apparent that copyleft is a growing concern
amongst software copyright proprietors. While nothing seems to have changed at
the fundamental legal level, in the software business, companies like Microsoft
et al definitely have reason for concern and must spruce up to face the
competition from this open-source software.
© Aashit Shah 2001. This article has been written for informational purposes only. Readers must not construe this article or any ideas and opinions expressed in this article as legal advice, nor should they act based upon any statement made in this article without soliciting professional advice. The author disclaims all liability that may arise due to any loss or damage caused to any reader based upon the reliance of this article.