Abstract
Having examined IP law, particularly copyright law, and how it needs to adopt a development perspective, it is important to consider innovative systems that can be used in combination with such laws for the benefit of developing countries. This chapter considers voluntary mechanisms, primarily Free and Open Source Software (FOSS) and Creative Commons (CC), and examines their relevance for developing countries. Voluntary mechanisms must be examined in the context of development as they are practical tools that can be localised for the benefit of developing countries. Most of the recent research on IP and development does not give proper attention to voluntary mechanisms or examine their relevance to the IP and development debate. This chapter calls on developing countries to seriously consider alternative approaches such as voluntary mechanisms and to use them in conjunction with traditional copyright laws. It examines the legal challenges and risks that those countries will face if they decide to adopt voluntary mechanisms. The chapter also looks at the civil legal system of Jordan as a case study for the adoption of FOSS and CC.
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- 1.
Steven Weber, The Success of Open Source Software (Harvard University, 2004) 254.
- 2.
Andrew Leonard, ‘ALT/ An Alternative Voice: How the Tech-Poor Can Still Be Software-Rich’, New York Times (online), 28 June 2001 <http://www.nytimes.com/2001/06/28/business/worldbusiness/28iht-btalt28.html?pagewanted=print>.
- 3.
- 4.
The Internet is a huge project that was successful due to the numerous researchers, scientists, and innovators who made it real. Among these are Vincent Cerf (TCP/IP Protocol), Tim Berner Lee (Hyper Text Makeup Language (HTML)), and John Postel (Domain Name System (DNS)). See Naavi Na.Vijayashankar, Cyber Laws For Every Netizen in India (2004) <http://www.naavi.org/cl_editorial_07/bba_2004.pdf>.
- 5.
See, for example, the following websites that allow users to download FOSS: Red Hat <http://www.redhat.com>, Linux kernel <http://www.kernel.org>, Suse <http://www.suse.com>, Open Office <http://www.openoffice.org/>.
- 6.
Among the most famous ones are Linux (an operating system), Firefox (a popular Internet browser), BIND (the Domain Name System), Thunderbird (a free email and news clients), and Apache (a Hypertext Transfer Protocol (HTTP) Web server).
As of April 2012, Apache servers have a 65.5% of share in the servers market. See Aetcraft, Web Server Survey (April 2012) <http://news.netcraft.com/archives/category/web-server-survey/>.
- 7.
Among these projects and initiatives are MIT Open Courseware <http://ocw.mit.edu/index.htm>, Open Law <http://openlaw.wikia.com/wiki/Main_Page>, Open Wetware <http://openwetware.org/wiki/Main Page>, Open Source Mining <http://themineproject.org/>, Free Encyclopaedia <http://en.wikipedia.org/wiki/Main_Page>, Open Music <http://repmus.ircam.fr/openmusic/home>, Open Source Audio <http://www.archive.org/details/opensource_audio>, Open Hardware <http://www.openhardware.net/>, OpenBios <http://www.openfirmware.info/Welcome_to_OpenBIOS>, Open Access <http://www.oaklaw.qut.edu.au>.
- 8.
Lucie Guibault and Ot van Daalen, Unravelling the Myth Around Open Source Licenses (TMC Asser, 2006) 1.
- 9.
Axel Metxger and Till Jaeger, ‘Open Source software and German Copyright Law’ 32 (2001) International Review of Intellectual Property and Competition Law 57.
- 10.
Severine Dusollier, ‘Open Source and Copyleft: Authorship Reconsidered?’ (2002–2003) 26 Columbia Journal of Law and Arts 281, 293.
- 11.
In some cases, the free software developer may have a long-term vision to monetise reputation created through FOSS development, but this is not always the case. See Yochai Benkler, Wealth of Networks (Yale University, 2006).
- 12.
Dusollier, above n 10, 287, 293. See also, José J. González de Alaiza Cardona, ‘Open Source, Free Software, and Contractual Issues’ (2007) 15 (2) Texas Intellectual Property Law Journal, 1; Metxger and Jaeger, above n 9, 74; Natasha T. Horne, ‘Open Source Software Licensing: Using Copyright Law to Encourage Free Use’ (2001) 17 Georgia State University Law Review, 863, 872.
- 13.
See full explanation of the ‘personal theory’, William Fisher, ‘Theories of Intellectual Property’ in Stephen Munzer (ed), New Essays in the Legal and Political Theory of Property (Cambridge University, 2001) 168–199.
- 14.
Dusollier, above n 10, 293.
- 15.
Some commentators describe the FOSS movement as an end to copyright. See Patrick K. Bobko, ‘Open Source Software and the Demise of Copyright’ (2001) 27 Rutgers Computer & Technology Law Journal 51; Eben Moglen, ‘Anarchism Triumphant: Free Software and the Death of Copyright’ in Lucie Guibault (ed), Copyright Limitations and Contracts: An Analysis of the Contractual Overidability of Limitations on Copyright (Kluwer Law International, 2002).
- 16.
Flickr <http://www.flickr.com>.
- 17.
See the home page of Flickr <http://www.flickr.com/creativecommons>. See also Frederic Lardinois, CC on Flicker: Users Prefer Restrictive Licenses (26 March 2009) Read Write Web <http://www.readwriteweb.com/archives/creative_commons_on_flickr_users_choose_most_restr.php>.
- 18.
CC does not specify any number but acknowledged that since June 2007 there were at least 40–60 million CC-licensed materials. See Creative Commons, Licensed Statistics (2011) <http://wiki.creativecommons.org/License_statistics>; Terry Hancock, Some Numbers on Creative Commons (5 March 2007) Free Software Magazine <http://www.freesoftwaremagazine.com/columns/some_numbers_on_creative_commons>; Giorgos Cheliotis, CC statistics (2 July 2007) Hoikoinoi <http://hoikoinoi.wordpress.com/2007/07/02/cc-stats/>.
- 19.
Creative Commons <http://www.creativecommons.org>.
- 20.
This is evident by the many organisations in developing countries that have started their CC projects in their jurisdictions. See the International Creative Commons <http://creativecommons.org/international>.
- 21.
See, generally, the limited research in FOSS in Arabic: Kefah T. Issah, Introduction to Free Software (28 April 2005) <http://www.freesoft.jo/www/people/kefah/freesoftware_whitepaper_arabic.pdf>; Anas Tawileh, Open Source, Options without Borders (2004) <http://www.tawileh.net/anas//files/downloads/books/OpenSource.pdf?download>.
- 22.
See, generally, the following research in Arabic: Faisel Al Kandry, ‘Civil Protection of Computer Software in Kuwaiti Law’ (a paper presented at the Computer and Law Conference, Emirates University, Dubai, 1–3 May 2000); Mustafa Arjawi, ‘Civil Protection for Computer Software’ (a paper presented at the Computer and Law Conference, Emirates University, Dubai, 1–3 May 2000); Nazeh AL Mahdi, ‘Civil Protection of Computer Software According to Applicable Laws’ (a paper presented at the Computer and Law Conference, Emirates University, Dubai, 1–3 May 2000); Ahmad Saman, ‘Legal Protection of Computer Software—Applications in Comparative Laws and in the Gulf States’ (a paper presented at Kuwaiti Conference on Law and Computers, Kuwait, 4–7 November 1989); Dala Essa Wasna, Protection of Copyright on the Internet (Sader, 2002); Nouri Hamad Khater, Explanation of Intellectual Property Rules—Author’s Rights and Neighbouring Rights (Emirates University, 2008); Naeam Imgabgab, Protection of Computer Software: A Comparative Study (AL Halabi, 2006); Emad Salamah, Legal Protection of Computer Software and Software Piracy Problem (Dar Wael, 2005); Abd-Al Razaq al Sunhouri, Explanation of the New Civil Code 274–436 (AL Halabi, 3rd ed, 1998); Naeam Imgabgab, Artistic Property and Neighbouring Rights—A Comparative Study (AL Halabi, 2000); Mohamad Housam Loutfi, Legal Protection of Computer Software (Dar Althaqafa, Cairo, 1987); The Arab Organisation for Education, Culture and Science—Copyright in the Arab World in Accordance with Arab and International Legislation (1999); Tourki Hamad Saqar, The Protection of Copyright–Theory and Practice (Arab Union Association, 1996); Mohamad Housam Loutfi, Public Performance Right in Musical Work—A Comparative Study between Egyptian and French Law (Egyptian Association for Books, 1987); Edward Eead, Copyright and Neibouring Rights in the Lebanese, Arabic and Foreign Laws (Sader, 2001); Abd al-Rasheed Mamoun and Mohamad Sami Abd Alsadak, Copyright and Neighbouring Rights (Dar Al Nahda, 2008).
- 23.
See Linus Torvalds, the initiator and developer of Linux Kernel who is still using the GNU GPL version 2. See Softpedia, Linus Torvalds Says No to GPLv3 (9 January 2008) <http://news.softpedia.com/news/Linus-Torvalds-Says-No-To-GPLv3-75766.shtml>.
- 24.
Andrés Guadamuz González criticised the GPL v3 as follows:
It is clear that the new version of the licence has lost clarity and gained length. This would not be a problem as such if this was followed by a strengthening of the existing provisions, but this does not seem to be the case at the moment. While there are some elegant and clever clauses in the new draft, others seem to be filled with explanatory paragraphs that seem to be out of place in a legal document. The draft could pick some drafting tips from the smaller and more elegant licences that solve some of its issues in a more efficient manner.
See Andrés Guadamuz González, ‘GNU General Public License v3:A Legal Analysis’ (2006) 3(2) Scripted 155. <http://www.law.ed.ac.uk/ahrc/script-ed/vol3-2/guadamuz.asp>.
- 25.
FOSS can be regarded as a viable alternative to ‘proprietary software’ such as Microsoft, which developing countries need to pay huge amounts to obtain. See Jonathan Zittrain, ‘Normative Principles For Evaluation Free and Proprietary Software’ (2004) 71 Chicago Law Review 274, 275.
- 26.
Richard Stallman believes that the ‘digital divide comes from artificial obstacles to sharing of information. This includes licensing of proprietary software and harmfully restrictive copyright laws. See Richard Stallman, World Summit on the Information Society, GNU.org <http://www.gnu.org/philosophy/wsis.html>.
- 27.
Gilberto Camara and Frederico Fonseca, ‘Information Policies and Open Source Software in Developing Countries’ (2007) 58 (1) Journal of the American Society for Information Science and Technology 121–132.
- 28.
It was between 1969 and 1970 when UNIX was developed by a small number of developers at AT&T; see Andrés Guadamuz, ‘Free and Open Source Software’ in Lillian Edwards and Charlotte Waelde, Law and the Internet (Hart Publishing, 3rd ed, 2009) 360–393 (365); Maureen O’Sullivan, ‘Making Copyright Ambidextrous: An Expose of Copyleft’ 2002 (3) The Journal of Information, Law and Technology < http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_3/osullivan >; Eric S. Raymond, ‘Brief History of Hackerdom’ in Chris DiBona, Sam Ockman, and Mark Stone, Open Sources: Voices from the Open Source Revolution (O’Reilly Media; 1999).
- 29.
Software is a set of statements or instructions written in a programming language such as C, C++, Pascal, Fortran, Java, and Basic, which instruct the computer to do what the programmer wants it to achieve. See, for further explanation of the technicalities in software, Jane K. Winn and Benjamin Wright, Law of Electronic Commerce (Aspen Law & Business, 4th ed, 2001) 2–13; Lawrence Lessig, ‘Open Source Baseline: Compared to What?’ in Robert W. Hahn, Government Policy Toward Open Source Software, 52 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1411617>; Horne, above n 12, 864–865.
- 30.
Gulbault and Daalen, above n 8, 8; Phoebe Ayers, Charles Matthews and Ben Yates, How Wikipedia Works and How You Can be Part of It (No Scratch, 2008) 38.
- 31.
Gulbault and Daalen, above n 8, 8.
- 32.
Dusollier, above n 10, 283. As L. Gulbault and O. Van Daalen rightly explained, Stallman ‘was confronted by a “stark moral choice”: Would he too follow the commercial road and create software that he would not be able to share with his fellow programmers, or would he end his career as a programmer?’ See Gulbault and Daalen, above n 8, 10.
- 33.
Benkler, above n 11, ch 3, 64–65.
- 34.
Richard Stallman, The GNU Manifesto GNU.org <http://www.gnu.org/gnu/manifesto.html>.
- 35.
Stefano Mazzocchi, The Free and Open Source Software (FOSS) Movement, Betaversion.org <http://www.betaversion.org/~stefano/papers/cms.pdf>.
- 36.
See also, for further explanation of the history of the FOSS movement, Benkler, above n 11, ch 3, 64–65; Mark Perry and Brian Fitzgerald, FLOSS as Democratic Principle, QUT eprint <http://eprints.qut.edu.au/4425/1/4425.pdf>; Dusollier, above n 10, 282–283, Metxger and Jaeger, above n 9, 53; Christopher May, ‘The FLOSS Alternative: TRIPS, Non-Proprietary Software and Development’ (2006) 18 (4) Knowledge, Technology and Policy 142, 149; Guadamuz, above n 28, 363, 365; Guibault and Daalen, above n 8, 7; Brian Fitzgerald and Rami Olwan, ‘The Legality of Free and Open Source Software Licenses: the Case of Jacobsen v. Katzer’, in Brian Fitzgerald (ed), Knowledge Policy for the 21st Century, (Irwin Law, 2011). Florian von Baum, Open Source Regulations–Latest Update (15 April 2008) <http://www.mlawgroup.de/team/florian-von-baum/index.php>; R. Van Wendel de Joode, J.A. de Brujin and M.J.G. Van Eeten, Protecting the Virtual Commons Self-Organizing Open Source and Free Software Communities and Innovative Intellectual Property Regimes (T.M.C. Asser, 2003) 7–12; Josh Lerner and Jean Tirole, ‘Economic Perspectives on Open Source’ in Joseph Feller et al., Perspectives on Free and Open Source Software (MIT, 2005) 50–52; Moreno Muffatto, Open Source—A Multidisciplinary Approach (Imperial College, 2006) 1–18; Brian Fitzgerald and Nic Suzor, ‘Legal Issues for the Use of Free and Open Source Software in Government’ (2005) 29 (2) Melbourne University Law Review 412, Andrew Stokes, ‘Authorship, Collaboration and Copyright: A View from the United Kingdom’ (2002) 13 (6) Entertainment Law Review 121–127; Paul B. Lambert, ‘Copyleft, Copyright and Software IPRs: Is Contract Still King’ (2001) 23 (4) European Intellectual Property Law Review 165–171.
- 37.
Eben Moglen, Declaration of Eben Moglen in support of MySQL’s motion for a preliminary injunction (Eben Moglen’s Declaration) in Progress Software Corp et al. vs. Mysql AB, et al., <http://www.gnu.org/press/mysql-affidavit.pdf>.
- 38.
Ibid.
- 39.
See, for an explanation of Stallman’s social movement, Zittrain, above n 25, 274–275.
- 40.
Laura Lambert et al. (eds), The Internet—A Historical Encyclopaedia (ABC-CLIO, 2005) Vol 1, 216; May, above n 36, 149.
- 41.
As Professor Lawrence Lessig noted, ‘Stallman’s real genius (from the perspective of a lawyer, and I apologize for that) was the GPL—a license that would use the power of copyright to guarantee that what was produced under GPL not be removed from the commons’. See Lawrence Lessig, ‘Open Code and Open Societies: Values of Internet Governance’ (1999) 41 Chicago Kent Law Review 101, 107 <http://cyber.law.harvard.edu/works/lessig/final.PDF>; Brian Fitzgerald, A Short Overview of Creative Commons AustLII <http://www.austlii.edu.au/au/journals/SydUPLawBk/2007/29.html>; Sam Williams, Free as in Freedom, Richard Stallman’s Crusade for Free Software (O’Reilly, 2002), ch 3 <http://oreilly.com/openbook/freedom/ch09.html>; O’Sullivan, above n 28, 3.
- 42.
Stallman produced v2 of the GNU GPL in 1990, and the last draft v3 of the GNU GPL was released on 31 May 2007. See, on the history of the GPL, Freesoftorg, The History of the GPL <http://www.free-soft.org/gpl_history/>; Gulbault and Daalen, above n 8, 10; González, above n 24.
- 43.
José J. González de Alaiza Cardona noted:
Richard Stallman and the copyleft advocates had been criticized for using copyright to achieve a system which is apparently contrary to copyright itself…The answer that Stallman gives to this critic is that the use of the copyleft clause “doesn’t mean that we are in favour of copyright law as a general matter. We’re not totally against copyright law, in a simple or blanket sense either, but we’re not defending the global copyright system that has mostly been imposed on the world merely because we use it because it’s there.
Cardona, above n 12, 40; Baum, above n 36; Dusollier, above n 10, 282
- 44.
Lambert et al., above n 40. Guibault and Daalen, above n 8, 89; Benkler, above n 11, ch 3, 64–65; Metxger and Jaeger, above n 9, 53–54; González, above n 24, 156.
- 45.
David A. Wheeler, Secure Programming for Linux and Unix HOWTO (2003) <http://www.dwheeler.com/secure-programs/Secure-Programs-HOWTO/index.html>.
- 46.
Matpal, Origin and History of Linux (30 Janyary 2011) <http://www.matpal.com/2011/01/origin-and-history-of-linux.html>.
- 47.
Ibid.
- 48.
Linus Torvalds has worked in Transmiteta in California from 1997 until 2003. He later joined Open Source Development Labs (OSDL) laboratories to develop the Linux Kernel that he wrote in the beginning of the 1990s. There is now a minor element of the Kernel of Linux that is written by Linus Torvalds still remaining, but he remains the ultimate decision-maker of what should be added to the Kernel. Linfo, Linus Torvalds: A Very Brief and Completely Unauthorized Biography <http://www.linfo.org/linus.html>.
- 49.
Linux Online, Linus Torvalds Bio <http://www.linux.org/info/linus.html>.
- 50.
Metxger and Jaeger, above n 9, 54.
- 51.
Linux Online, above n 49.
- 52.
Guadamuz, above n 28, 363.
- 53.
Moglen, above n 37.
- 54.
Steve Ireland, The Cathedral and the Bazaar (28 July 1998) CIO <http://www.cio.com.au/article/108703/cathedral_bazaar/>.
- 55.
Raymond, above n 28, 54. See also The Cooperation Commons, Cathedral and the Bazaar (1989) <http://www.cooperationcommons.com/node/396>.
- 56.
Bruce Perens <http://perens.com/>.
- 57.
Open source Initiative (OSI) <http://en.wikipedia.org/wiki/Open_Source_Initiative>.
- 58.
Open source <http://opensource.org/>.
- 59.
Lerner and Tirole, above n 36, 52.
- 60.
Jesus M Gonzalez-Barahona, A Brief History of Open Source Software (24 April 2004) Eu.conecta <http://eu.conecta.it/paper/brief_history_open_source.html>. See also for an excellent overview of the movement, Bruce Byfield, FOSS: Free and Open Source Software (30 May 2010) Datamation <http://itmanagement.earthweb.com/osrc/article.php/3885101/FOSS-Free-and-Open-Source-Software.htm>; Zittrain, above n 25.
- 61.
The Term free/libre open source software (FLOSS) is also used primarily in Europe. It was first coined in 2001 in a study prepared by the United Nations University of Maastricht (UNU MRT) by Rishab Ghosh. See Rishab Aiyar Ghosh <http://www.merit.unu.edu/>.
- 62.
Steven Levy <http://www.stevenlevy.com/>.
- 63.
Steven Levy, Hackers: Heroes of the Computer Revolution (November 1996) Penn Libraries <http://digital.library.upenn.edu/webbin/gutbook/lookup?num=729>.
- 64.
Guibault and Daalen, above n 8, 7.
- 65.
Both FSF and OSI give developers the right to charge for the software that they might wish to distribute. They are also not in any way against IP. On the contrary, they are both based on copyright principles. Yochai Benkler explains:
Free software is, without a doubt, the most visible instance of peer production at the turn of the twenty-first century. It is by no means, however, the only instance. Ubiquitous computer communications networks are bringing about a dramatic change in the scope, scale, and efficacy of peer production throughout the information and cultural production system. As computers become cheaper and as network connections become faster, cheaper, and ubiquitous, we are seeing the phenomenon of peer production of information scale to much larger sizes, performing more complex tasks than were possible in the past for non-professional production.
Benkler, above n 11, 68.
- 66.
Richard Stallman explains:
While free software by any other name would give you the same freedom, it makes a big difference which name we use: different words convey different ideas. In 1998, some of the people in the free software community began using the term “open source software” instead of “free software” to describe what they do. The term “open source” quickly became associated with a different approach, a different philosophy, different values, and even a different criterion for which licenses are acceptable. The Free Software movement and the Open Source movement are today separate movements with different views and goals, although we can and do work together on some practical projects. The fundamental difference between the two movements is in their values, their ways of looking at the world. For the Open Source movement, the issue of whether software should be open source is a practical question, not an ethical one. As one person put it, “Open source is a development methodology; free software is a social movement.” For the Open Source movement, non-free software is a suboptimal solution. For the Free Software movement, non-free software is a social problem and free software is the solution.
See Richard Stallman, Why “Free Software” is better than “Open Source” Gnu.org <http://www.gnu.org/philosophy/free-software-for-freedom.html>. See also Byfield, above n 60.
- 67.
Scholars identify different types of motivations to explain why programmers voluntarily give time to FOSS. See the extensive literature that explains the motivation for working on such projects: David A. Wheeler, Why Open Source Software/ Free Software (OSS/FS, FLOSS or FOSS) Look at the Numbers! <http://www.dwheeler.com/oss_fs_why.html>; UNCTAD, E-commerce and Development Report (2003), 106–108 <http://www.cnnic.net.cn/download/manual/international-report/edr03.pdf >; Ronald Mann, ‘Commercializing Open Source Software: Do Property Rights Still Matter?’ (2006) 20 (1) Harvard Journal of Law and Technology; Niranjan Rajani, Juha Rekola and Timo Mielonen, Free as in Education: Significance of FLOSS for the Developing countries (13 May 2003), International Telecommunication Union (ITU), 18 <http://www.itu.int/wsis/docs/background/themes/access/free_as_in_education_niranjan.pdf>; Eben Moglen, Free Software Maters, When Code Isn’t Law (23 April 2000) Columbia University <http://emoglen.law.columbia.edu/my_pubs/lu-01.html>; Lambert, above n 36.
- 68.
FSF and OS both use the GNU GPL version 3.0 which can be found here <http://www.gnu.org/licenses/gpl-3.0.html>.
- 69.
Byfield, above n 60.
- 70.
Andrew Katz, Open Source Software (2010) 1 Intellectual Property Magazine 18, 19.
- 71.
Mazzocchi, above n 35.
- 72.
To be recognised by FSF as being “Free Software”, the following four freedoms must be met:
Freedom 0; the freedom to run the program for any purpose, Freedom 1; the freedom to study how the program works and change it to make it do what you wish, Freedom 2; the freedom to redistribute copies so you can help your neighbour, Freedom 3; the freedom to improve the program and release your improvements (and modified versions in general) to the public, so that the whole community benefits.
To be recognised as “Open Source”, according to the OSI definition, the following should be allowed; 1. no royalty or other fee imposed upon redistribution; 2. availability of the source code; 3. right to create modifications and derivative works; 4. may require modified versions to be distributed as the original version, plus patches; 5. no discrimination against persons or groups; 6. no discrimination against fields of endeavour; 7. all rights granted must flow through to/with redistributed versions; 8. licence applies to the program as a whole and each of its components; 9. licence must not restrict other software, thus permitting the distribution of open source and closed-source software together, and 10. licence must be technology-neutral. See FSF, the Free Software Definition Gnu.org <http://www.gnu.org/philosophy/free-sw.html>; OSI, OSI definition Opensource.org <http://www.opensource.org/osd.html>.
- 73.
The FSF encourages people to use the term “Free Software” rather than “Open Source”, as specified by OSI. Stallman critiques the use of the term “Open Source” and argues that it misrepresents the meaning that OSI founders have intended to achieve. On the other hand, OSI has criticised the approach of FSF (particularly Stallman) to software development, mainly for not taking into consideration the commercial nature of open projects that businesses might want to initiate. See the following on the different philosophies: Guadamuz, above n 28, 365); Zittrain, above n 25; Mazzocchi, above n 35; Stallman, above n 66; Perry and Fitzgerald, above n 36, 4; Sullivan, above n 28, 10; Richard Stallman, Copyleft Idealism Gnu.org <http://www.gnu.org/philosophy/pragmatic.html>; Eric Raymond, Shut Up And Show Them the Code (1999) Linux Today <http://www.linuxtoday.com/news_story.php3?ltsn=1999-06-28-023-10-NW-SM>; Eben Moglen, Free Software Matters: Free Software or Open Source? (12 August 2001) Columbia University <http://emoglen.law.columbia.edu/publications/lu-07.pdf>.
- 74.
Christian Siefkes, Peer Production Everywhere, Thoughts About a Society Based on Common Peer Production—And How to Get There (March 2009) Peerconomy.org <http://peerconomy.org/talks/ox4/>; Yochai Benkler and Helen Nissenbaum, ‘Commons-Based Peer Production’ (2006) 14 (4) The Journal of Political Philosophy, 394–419.
- 75.
See Walton Pantland, Are Foss and Creative Commons Important for Unions (2010) Cyberunions <http://cyberunions.org/2010/04/25/are-foss-and-creative-commons-important-for-unions/>.
- 76.
Robert D. Hof, The Power of US, Business Week (online), 20 June 2005 <http://www.businessweek.com/print/magazine/content/05_25/b3938601.htm?chan=gl>.
- 77.
UNCTAD, Free Software and Open Source Foundation for Africa, The State of Free and Open Source Software in Africa & Proposed Action Plan (June 2003), 3 <http://r0.unctad.org/ecommerce/event_docs/tunis03/fossfa.pdf>.
- 78.
Paul Dravis, Open Source Software—Perspectives for Development (November 2003) The Dravis Group, 20 <http://www.infodev.org/en/Document.21.pdf>; Rishab Aiyer Ghosh, ‘The European Politics of F/OSS Adoption’ in Joe Karagains and Robert Latham (eds), The Politics of Open Source Software Adoption (May 2005) <http://joekaraganis.files.wordpress.com/2011/02/posa1-0.pdf>.
- 79.
Perry and Fitzgerald, above n 36, 2.
- 80.
Rajani, Rekola and Mielonen, above n 67, 79.
- 81.
Nagla Rizk and Lea Shaver, Access to Knowledge in Egypt (Bloomsbury Academic 2010) 141.
- 82.
Jennifer Papin Ramcharan and Frank Soodeen, ‘Open Source Software: A Developing Country View’ in Kirk St. Amant and Brian Still, Handbook of Research on Open Source Software: Technological, Economic, and Social Perspectives (IGI Global, 2007) 93, 97; UNCTAD, above n 77, 5, UNCTAD, above n 67, 110; Guadamuz, above n 28, 391.
- 83.
As Professor Eben Moglen noted that:
Non-traditional means of production can be amazingly efficient. Large numbers of programmers can collaborate easily on enormous projects without having to be locked into a hierarchical organization. Everyone can participate in finding and fixing bugs and everyone can readily incorporate all the fixes, so the quality of free software can be much higher than that of programs produced by a limited number of developers and testers inside a commercial proprietary manufacturer.
Moglen, above n 67.
- 84.
Weber, above n 1, 253.
- 85.
Rizk and Shaver, above n 81, 141.
- 86.
UNCTAD, above n 77, 5.
- 87.
Rizk and Shaver, above n 81, 157.
- 88.
Rajani, Rekola and Mielonen, above n 67, 78.
- 89.
Rizk and Shaver, above n 81, 134.
- 90.
Charles Leadbeater, Brazil and Open Source <http://www.charlesleadbeater.net/cms/xstandard/Brazil_Open_Source.pdf>.
- 91.
May, above n 36, 152.
- 92.
Sanjiva Weerawarana and Jivaka Weeratunga, Open Source Software in Developing Countries (January 2004), OpenIT@giz 33 <http://www.it-inwent.org/e2484/e3407/e3431/e3432/opensource_in_developing_countries_eng.pdf>.
- 93.
Ibid; Fitzgerald and Suzor, above n 36; Ghosh, above n 78.
- 94.
UNCTAD, above n 77, 5; Ramcharan and Soodeen, above n 82, 99; May, above n 36, 150; Rajani, Rekola and Mielonen, above n 67, 79; Ghosh, above n 78.
- 95.
May, above n 36, 153, 159; Pablo Wegbrait, Free and Open Source Software in Argentina Yaleisp.org <http://yaleisp.org/publications/a2kresearch/>; Rizk and Shaver, above n 81, 156.
- 96.
Leadbeater, above n 90. See also Wegbrait, above n 95, 2.
- 97.
UNCTAD, above n 77, 4, 10.
- 98.
Ajay Shah, What Open Source Software means to India (16 December 1998) Mayin.org <http://www.mayin.org/ajayshah/MEDIA/1998/free-sw.html>.
- 99.
Cutler & Company, Venturous Australia Report—Building Strength in Innovation, Building Strength in Innovation, Report for the Australian Government (2008) Australian Government, Department of Industry, Innovation, Science and Tertiary Education <http://www.innovation.gov.au/Innovation/Policy/Documents/NISReport.pdf>.
- 100.
Dravis, above n 78, 7.
- 101.
UNCTAD, above n 67, ch 4, 113.
- 102.
Wheeler, above n 45.
- 103.
Linux Security, Interview with Vincent Rijmen <http://www.linuxsecurity.com/content/view/117552/49/>.
- 104.
Peter P. Swire, ‘A Theory of Disclosure for Security and Competitive Reasons: Open Source, Proprietary Software, and Governments Systems’ (2006) 42 (5) Houston Law Review 101–148.
- 105.
Ibid 120–122.
- 106.
Edgar David Villanueva Nunez, Email to General Manager of Microsoft Peru, Lima (8th of April, 2002) Gnuwin <http://www.theregister.co.uk/2002/05/19/ms_in_peruvian_opensource_nightmare/>.
- 107.
Ibid.
- 108.
Argentina was among the first countries that introduced a bill in Parliament that allows only the use of open source software in the government. See Marcelo Dragan, Open Source Software Bill Proposicion Project Website (proposal for the use of open technologies in the government) <http://proposicion.org.ar/proyecto/leyes/5613-D-00/index.html>.
- 109.
UNCTAD, above n 77, ch 4, 109.
- 110.
Lessig, above n 29, 67–68.
- 111.
Guadamuz, above n 28, 390.
- 112.
See also Rajani, Rekola, and Mielonen, above n 67, 59. In the Arab world, there are some initiatives such as ArabEyes dedicated to making FOSS Arabic; see <http://projects.arabeyes.org/index.php>.
- 113.
Rizk and Shaver, above n 81, 165.
- 114.
May, above n 36, 142.
- 115.
Weerawarana and Weeratunga, above n 92.
- 116.
Guadamuz, above n 28, 391.
- 117.
Rizk and Shaver, above n 81, 165.
- 118.
Weber, above n 1, 251.
- 119.
Weerawarana and Weeratunga, above n 92.
- 120.
Ibid 24.
- 121.
For example, the revenues of Red Flag Software Co, a Beijing-based distributor of Linux totalled US$8.1 million in 2003. See IDG, China’s Red Flag Linux to focus on Enterprise (16 August 2004) IT World <http://www.itworld.com/040816chinaredflag>; Felix Oberholzer-Geee, Tarun Khanna and David Lane, Red Flag Software Co (26 October 2010).
- 122.
Rajani, Rekola and Mielonen, above n 67, 69.
- 123.
Some suggest that developing countries that do not have the necessary hardware to run the software should think of using open hardware. See Mohamed A. Salem and Jamal I. Khatib, An Introduction to Open Source Hardware Development (2004) EE Times <http://www.eetimes.com/news/design/features/showArticle.jhtml?articleID=22103383>; Cameron Parkins, OpenMoko CC Licenses CAD Files for Neo1973 (10 March 2008) Creative Commons <http://creativecommons.org/weblog/entry/8117>.
- 124.
Rajani, Rekola and Mielonen, above n 67, 78.
- 125.
Bibek Debroy and Julian Morris, Open to Development: Open Source Software and Economic Development (29 March 2004) International Policy Network, 15–16 <http://www.policynetwork.net/creativity-innovation/publication/open-development-open-source-software-and-economic-development-0>.
- 126.
Weber, above n 1, 253.
- 127.
Rishan Aiyer Ghosh, Licence Fees and GDP Per Capita: The Case for Open Source in Developing Countries, (2003) 8 (12) First Monday <http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/1103/1023>.
- 128.
Debroy and Morris, above n 125, 11.
- 129.
Ibid 10.
- 130.
Weber, above n 1, 254.
- 131.
Eugene Eric Kim, F/OSS Adoption in Brazil: The Growth of a National Strategy (31 March 2005) Blue Oxon Associates <http://blueoxen.com/paper/foss-adoption-in-brazil/#nid4ZC>.
- 132.
Rahul De, Economic Impact of Free and Open Source Software—A Study in India (September 2009), 4–5 <http://www.iimb.ernet.in/~rahulde/RD_FOSSRep2009.pdf>.
- 133.
See also Rishab Aiyer Ghosh, ‘The Opportunities of Free/Libre/Open Source Software for Developing Countries’ (A background paper to the UNCTAD-ICTSD Dialogue on Moving the Pro-Development IP Agenda Forward: Preserving Public Goods in Health, Education and Learning, Bellagio, 29 November – 3 December 2004) <http://www.iprsonline.org/unctadictsd/bellagio/docs/Gosh_Bellagio4.pdf>.
- 134.
Ibid.
- 135.
See, for an excellent explanation of these issues, Jyh-An Lee, ‘New Perspectives on Public Goods Production: Policy Implications of Open Source Software’ (2006) 9 (1) Vanderbilt Journal of Entertainment and Technology Law 45–112 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963491>.
- 136.
For an explanation of the technical challenges that developing countries might face in the adoption of FOSS, see Katherine Noyes, Why Doesn’t Linux Dominate in the Developing World? (2010) Linux Insider <http://www.linuxinsider.com/rsstory/69856.html?wlc=1277627734>.
- 137.
Richard Boateng and Silvia Aimasso, Potential Benefits and Challenges of FOSS in Developing Countries’, 15 February 2011 <http://www.pctechmagazine.com/index.php?option=com_content&view=article&id=343:potential-benefits-and-challenges-of-foss-in-developing-countries&catid=50:research&Itemid=70>.
- 138.
For an explanation of open source licences, see May, above n 36, 149.
- 139.
See Brian Fitzgerald and Graham Bassett, Legal Issues Relating to Free and Open Source Software, 11–36 <http://www.law.qut.edu.au/files/open_source_book.pdf>; UNCTAD, above n 67, ch 4, 113–114; Dravis, above n 78, 30–31; Andrew Zangrilli, Interview on Open Source Software Licensing with Attorney Philip Albert <http://technology.findlaw.com/legal-software/interview-on-open-source-software-licensing-with-attorney-philip.html>; David McGowan, ‘Legal Aspects of Free and Open Source Software’ in Joseph Feller et al. (eds), Perspectives on Free and Open Source Software (2005, MIT) 382; Richard Fontana et al., A Legal Issues Primer for Open Source and Free Software Projects (3 March 2008) Software Freedom Law Center <http://www.softwarefreedom.org/resources/2008/foss-primer.html>; State Services Commission (New Zealand); Guide to the Legal Issues in Using Open Source Software (May 2006) United Nations Public Administration Network <http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN024137.pdf>.
- 140.
See Terry Carroll, Frequently Asked Questions About Copyright (11 September 2003) Copyright FAQ <http://www.tjc.com/copyright/FAQ/>; Lessig, above n 29, 52; Winn and Wright, above 29, 2–13; Andrew M. St. Laurent, Understanding Open Source and Free Software Licensing (O’Reilly, 2004), ch 1 <http://oreilly.com/catalog/osfreesoft/book/>; Horne, above n 12; Alan Story, Intellectual Property and Computer Software Commission on Intellectual Property Rights <http://www.iprcommission.org/papers/text/study_papers/sp5_story_study.txt>; Fitzgerald and Suzor, above n 36; Zangrilli, above n 139, Lambert, above n 36.
- 141.
It is now settled, according to international copyright treaties and national copyright laws, that computer software should be protected primarily through copyright and not by any other form of IP. Software is also protected through patent in some countries, including China; see, K.H. Pun and Tian Furong, ‘Patent Protection for Computer Software: an Under-Explored Avenue in China’ (1999) 5(6) Computer and Telecommunication law Review 172–178.
- 142.
Open-software licences are not all the same as they may vary in terms of having a strong or weak ‘copyleft’. Professor Lawrence Lessig explains the two basic types of open source licences:
[W]hile the variety of open source and free software licenses is broad, we can identify essentially two sorts: copylefted software and non-copylefted software. Copylefted software is software that is licensed under terms that require follow-on users to require others to adopt the same license terms for work derived from the copylefted code. The principle is “share and share alike.” Non-copylefted open source software imposes no such condition on subsequent use. With copylefted software, the price of admission is that if you redistribute modified versions of the copylefted code, you must redistribute it under similar license terms; with non copylefted software, no such price is demanded. Non-copylefted open source software does not impose this condition on subsequent licensing. Not only is a user free to build upon it, but it also does not require that such building be released under similar licensing terms.
Lessig, above n 29, 52, 54. See also Story, above n 140, 7.
- 143.
There are roughly 70 FOSS Licences. These, for example, include the GNU GPL, the Mozilla Public License (MPL), the GNU Lesser General Public License LGPL (for libraries), the BSD Berkeley Software Distribution License, and the Apache Software License. See the following: GNU Project, Categories of Free and Nonfree Software <http://www.gnu.org/philosophy/categories.html>; GNU Project, Various Licences and Comments about Them <http://www.gnu.org/licenses/license-list.html>; González, above n 24; Baum, above n 36; Magnus Cedegren, ‘Open Content and Value Creation’ (2003) 8 (8) First Monday < http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/1071 >.
- 144.
Open source licences are based on solid legal principles in copyright and contract law. See, for further explanation of the contractual issues, P. Bernt Hugenholtz, Code as the Code or the End of Intellectual Property as we Know it (Institute of Information Law, University of Amsterdam) <http://www.ivir.nl/publications/hugenholtz/maastricht.doc>; Laurent, above n 140, ch 1; Zangrilli, above n 139.
- 145.
Article 2(2) of the Jordanian Civil Code provides:
If the court shall find no provision in this code, it shall decide by the rules of Moslem Jurisprudence which are more adaptable to the provisions of this code, and if there none then by the principle of the Moslem sharia’a.
Jordanian Civil Code No. 43 of 1976, Official Gazette No 2645, 1 August 1976 (Jordanian Civil Code) (Arabic), art 2 (2) <http://www.lob.gov.jo/ui/laws/search_no.jsp?no=43&year=1976>.
Article 3 of the Jordanian Civil Code provides:
The rules of Moslem Jurisprudence shall be referred to for the understanding of a provision, its interpretation and meaning.
Ibid art 3.
- 146.
Public law constitutes the body of laws that govern the relationship between states (international law) or between the state acting as sovereign power and individuals (criminal law). On the other hand, private law constitutes the body of laws that govern the relationship between individuals or between individuals and the state not acting as a sovereign power but as an ordinary person (civil law).
- 147.
See also Andrés Guadamuz-González, ‘The License/Contract Dichotomy in Open Licenses: a Comparative Analysis’ (2009) 30 (2) European Intellectual Property Review 101, 103; Cardona, above n 12, 42; Guadamuz, above n 28, 379; Stephan Meyer, Nature and Validity of Licensing Relationships under the GPL (an LLM paper, Columbia University, 2007) 52–53.
- 148.
This would have a practical consequence when choosing a law. For example, if the copyright law and not contract law is applicable, this means that remedies would be an injunctive relief in accordance with the copyright law and not compensatory damages available under contract law.
- 149.
See Harald Welte vs. D. Deutsshcland GmbH (2006) 2–6 0 224/06 (District Court of Frankfurt Am Main) (‘Frankfurt Open Source Software Case’) <http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf>; S… Deutschland GmbH (2004) 21 O 6123/04 (District Court of Munich) (‘Munich Open Source Software Case’) <http://www.jbb.de/fileadmin/download/judgment_dc_munich_gpl.pdf>.
The Court noted in Robert Jacobsen v. Matthew Katzer and Kamind Associates, in particular:
The heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license. Generally, a “copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement” and can sue only for breach of contract. Sun Microsystems, Inc., v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999); Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998). If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir.1989); Nimmer on Copyright, § 1015[A] (1999). Thus, if the terms of the Artistic License allegedly violated are both covenants and conditions, they may serve to limit the scope of the license and are governed by copyright law. If they are merely covenants, by contrast, they are governed by contract law. See Graham, 144 F.3d at 236–37 (whether breach of license is actionable as copyright infringement or breach of contract turns on whether provision breached is condition of the license, or mere covenant); Sun Microsystems, 188 F.3d at 1121(following Graham; independent covenant does not limit scope of copyright license). The District Court did not expressly state whether the limitations in the Artistic License are independent covenants or, rather, conditions to the scope; its analysis, however, clearly treated the license limitations as contractual covenants rather than conditions of the copyright license.
cf. Robert Jacobsen v. Matthew Katzer and Kamind Associates, Inc 2008 U.S. App. LEXIS 17161 (Fed. Cir. 2008).
- 150.
See MAI Systems Corp v Peak Computer 991 F.2d 511, 518 (9th Cir. 1993).
- 151.
Moglen, above n 73; Margaret Jane Radin, ‘Humans, Computers and Binding Commitment’ (2000) 75 Indiana Law Journal 1125.
- 152.
Lawrence Rosen suggests that contract law should be applied to the GNU GPL because it is richer and could provide proper answers to the legal issues raised by the use of open source licences. He argues:
Contract law, unlike copyright and patent law, provides procedures and rules for license interpretation and enforcement. Contract law, in the published court decisions and in the statutes adopted by legislatures around the world, addresses almost every possible term or condition a lawyer could dream up for a contract. Contract law specifies how contracts are to be formed, how they are to be interpreted, how they are to be enforced, and the remedies for breach. In many situations, where a license is silent about a particular term or condition, contract law even provides default “fill-in” provisions.
See Lawrence E. Rosen, Open Source Licensing: Software Freedom and Intellectual Property Law (Prentice Hall, 2004) 53–57 <http://www.rosenlaw.com/oslbook.htm>: See also the following: Raymond T. Nimmer, Legal Issues in Open Source and Free Software <http://euro.ecom.cmu.edu/program/law/08-732/Transactions/LegalIssuesNimmer.pdf>; Douglas A. Hass, ‘A Gentlemen’s Agreement: Assessing the GNU General Public Licenses and its Adaptation to Linux’ (2007) 6 Chicago-Kent Journal of Intellectual Property 213; Laurent, above n 140; Jeremy Malcolm, Problems with Open Source Licensing (ILaw Barristers and Consultants) <http://www.ilaw.com.au/public/licencearticle.html>.
- 153.
Cardona, above n 12, 44.
- 154.
Among these treaties are the Berne Convention, WCT, WPPT, and TRIPs.
- 155.
Cardona, above n 12, 44.
- 156.
José J. González de Alaiza Cardona noted:
I consider that free software licenses are Janus-like. On the one hand, they are a non-contractual copyright license that allows end users private utilization of the program. On the other hand, they are a contractual license that allows redistributors to copy, distribute and/or modify the software, under the condition of recognizing to any sublicense the right to copy, distribute and/or modify the software. As a consequence of Janus-like nature of copyleft licenses, the relationship between author of the program and end user is exclusively governed by Copyright. In opposition, the agreement between author and redistributors must be examined not only under copyright, but also under contract law provisions.
Ibid 76.
- 157.
Professor Al Sanhouri differentiates between a contract and an agreement. ‘An agreement is the joining and the consistence of two parties or more to create, transfer, and amend or to end an obligation. A contract on the other hand, is the joining and the consistence of two parties to create or to amend an obligation. A contract is more specific than an agreement and this means that every agreement can be a contract, but not every contract can be an agreement’. See Abd Al Razaq Al Sanhouri, Al Waseet in the Explanation of the Civil Code (Al Halabi, 3rd ed, 1998) vol 1, 117–118.
- 158.
See also for explanation of the civil legal system: John Bell and Sophie Boyron, Principles of French Law (Oxford University, 2nd ed, 2008) 294–416; Martin Vranken, Fundamentals of European Civil Law (Federation, 2nd ed, 2010) 101–122; P.D.V Marsh, Comparative Contract Law England, France, Germany (Gower, 1994); Maurice Sheldon Amos and Frederick Parker Walton, Introduction to French Law (Oxford, 3rd ed, 1967).
- 159.
In the Munich Open Source Case, the Court noted that clause 4 of the GPL constitutes a condition subsequent. See Munich Open Source Case, above n 149. For an excellent analysis, see Guido Westkamp, ‘The Limits of open Source: Lawful User Rights, Exhaustion and Co-existence with Copyright Law’ (2008) 1 Intellectual Property Quarterly 14–57.
- 160.
See the following on the legality of open source software in common law systems:
Moglen, above n 73, 3, 4; Radin, above n 151, Lawrence Rosen, ‘OSL 3.0 A Better License for Open Source Software’ (2007) <http://www.rosenlaw.com/OSL3.0-explained.pdf>, Malcolm, above n 152.
- 161.
See the following on the legality of open source software in civil legal system: Gulbault and Daalen, above n 8, 46–47; González, above n 147, 101–116; Cardona, above n 12, 44; Westkamp, above n 159.
- 162.
Some would classify open source licences as cohesion contracts. This is because the licensee can only accept the conditions available in the contract and cannot argue or ask for different conditions. Contracts are considered as a cohesion contract when two conditions are met. Firstly, the contract should be related to goods and public utilities that are regarded as essential for consumers or contractors. Secondly, the offeror should monopolise the goods or the utilities legally or, at the minimum, control the monopoly of such utility and good. It is noted that open source software licences are not adhesion contracts as the requirements of adhesion contracts are not present. See, for further explanation of cohesion contracts, Nouri Khater and Adnan Serhan, Explanation of the Jordanian Civil Code—Personal Rights (Obligations) (1997) 72–73. See Jordanian Civil Code, above n 145, art 104 and art 204.
- 163.
There are different kinds of contracts. Article 89 of the Jordanian Civil Code provides as follows:
-
1.
The general rules in this chapter shall be applicable to contracts both specified or otherwise.
-
2.
But the rules limited to certain civil contracts shall be subject the provisions of the chapter relating thereto and the rules of commerce shall determine the rules relating to commercial contracts.
Jordanian Civil Code, above n 145, art 89.
-
1.
- 164.
Al Sanhouri, above n 157, 130-131
- 165.
For an excellent explanation of the Civil Code, particularly the Egyptian, see Ibid 130-131.
- 166.
The Jordanian Civil Code in arts 34-241 deal with all matters related to contracts. See Jordanian Civil Code, above n 145, art 34-221.
- 167.
See also, for explanations of the civil legal system, Bell and Boyron, above n 158; Vranken, above n 158; Marsh, above, 158; Amos and Walton, above n 158.
- 168.
Article 2 of the Commercial Law No. 12 of 1966 in Jordan provides:
-
1.
In case there is no provision in this law, the rules of the civil code shall be applied on commercial matters.
-
2.
The rules of the civil law shall only be applied according when it is in agreement with the principles of commercial law.
Commercial Law No. 12 of 1966, Official Gazette No. 1910, 30 March 1966 (Commercial Law), art 2 (in Arabic) <http://www.lob.gov.jo/ui/laws/search_no.jsp?no=12&year=1966>.
-
1.
- 169.
Article 256 of the Jordanian Civil Code provides that:
Every Injurious act shall render the person who commits it liable for damage even if he is anon discerning perron.
Jordanian Civil Code, above n 145, art 256.
- 170.
Article 49 of Copyright Law No. 22 of 1992 before amendments provides:
The author who was infringed with respect to any of the rights he is entitled to regarding his work according to the provisions of this law, shall have the right to obtain a fair compensation in this regard. In deciding the compensation, the cultural standing of the author, the literary, scientific or artistic value of the work and the extent the infringer benefited by exploiting the work shall be taken into consideration. The adjudicated compensation for the author shall in this case be considered a privileged debt with respect to the net price of the sale of the objects which were used to infringe his rights and the sum of money seized in the lawsuit.
Copyright Law No. 22 of 1992, Official Gazette No. 3821, 16 April 1992 (Copyright Law), art 49.
<http://www.lob.gov.jo/ui/laws/search_no.jsp?no=22&year=1992>.
- 171.
Mustafa Faraj, Enforcement of Copyright (in Arabic) <http://www.farrajlawyer.com/viewTopic.php?topicId=632>.
- 172.
See, on bilateral contracts, the Jordanian Civil Code, above n 145, art 203.
- 173.
It can also be considered as unilateral contract. This could happen in the situation when one of the parties has not provided any sufficient promise to the other party. This may be particularly true in certain type of non-copy lefted licences that put minimum obligations on the user who is also free to use the source code in proprietary software.
- 174.
See Jordanian Civil Code, above n 145, arts 465-531 (sale contract), arts 685-722 (lease contract), and arts 582-610 (partnership contact).
- 175.
Article 21 of the Jordanian Civil Code provides:
Contracts between livings persons shall in their form be governed by the law of the country in which they are made, they may also be governed by the law applicable to their substantive provisions, and they may be subject to the law of domicile of the two contracting parties or their commons national law.
Jordanian Civil Code, above n 145, art 21.
- 176.
See, for full explanation of the Jordanian conflicts of law rules, Hassan Al Hadawy—Conflicts of Laws—General Principles and Solution in the Jordanian Law—A Comparative Study (in Arabic) (1997).
- 177.
Article 101 of Jordanian Civil Code provides as follows:
If the at the time of contracting the two contracting parties shall not be present the contract shall be deemed to have been made in the place and at the time of acceptance unless there is an agreement or legal provisions to a different effect.
Article 102 of the Jordanian Civil Code provides:
Contracting by telephone or any similar method shall in respect of the place be considered as it has been completed between two contracting parties not present when the contract was made, but in respect of time it shall be considered as if it has been made between two present parties.
Jordanian Civil Code, above n 145, arts 101-102. See also In Mahkamat al-Tamiex [Taimez], Court of Cassation, 67/1988; Mahkamat al-Tamiex [Taimez], Court of Cassation, 697/1982, In Mahkamat al-Tamiex [Taimez], Court of Cassation, 539/1983.
- 178.
The General Counsel of MontaVista Software, Inc., an open source software company noted that:
[M]ost licensors get the GPL in one of two ways: they get a piece of paper with the GPL printed on it (but not normally “wrapped” around any box or piece of software) [physical delivery] or they get, along with the software, an electronic file containing the GPL (but normally without the file being designed as a clickwrap) [digital delivery].
Jason B. Wacha, ‘Open Source, Free Software, and the General Public License’ (2003) 20 (3) Computer and Internet Lawyer, cited in Cardona, above n 12, 60.
- 179.
Gulbault and Daalen, above n 8, 57.
- 180.
Ibid 46-47.
- 181.
See Jordanian Civil Code, above n 145, arts 557-581 on the requirements of gift contracts.
- 182.
Moglen, above n 37, 2
- 183.
Section 5 of the GPL is clear about acceptance and when it takes place. It provides:
You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
The GNU GPL, version 2 <http://www.gnu.org/licenses/gpl-2.0.html>.
- 184.
Eben Moglen noted that:
The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL’d software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL’d software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL’d code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL’d software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed.
Eben Moglen, Enforcing the GNU GPL GNU.org <http://www.gnu.org/philosophy/enforcing-gpl.html>.
- 185.
González, above n 147, 106; Gulbault and Daalen, above n 8, 71; Cardona, above n 12, 51-52; Westkamp, above n 159,14-57.
- 186.
Article 87 of the Jordanian Civil Code provides:
The contract is the joining and consideration of the offer from one of the contracting parties with acceptance from the other in a manner which proves the effect thereof on the object of the contract and the obligation of each party by what he is bound with to the other.
Jordanian Civil Code, above n 145, art 87.
- 187.
Article 199 of the Jordanian Civil Code provides:
-
1.
The effect of the contract shall on its formation attach to the contracted object and its consideration without being conditional on possession or any other thing unless the law otherwise provides.
-
2.
But in respect of the rights of the contract each of the two parties perform his obligation prescribed by the contract.
Jordanian Civil Code, above n 145, art 199.
-
1.
- 188.
Article 167 of the Jordanian Civil Code provides:
The valid contract is the contract which is basically and descriptively lawful by being made by capable persons, relating to an object that can be subject to its provisions, having an existing valid and lawful purpose, having correct description and not subject to a vitiating condition.
Jordanian Civil Code, above n 145, art 167.
- 189.
Article 90 of the Jordanian Civil Code provides:
The contract shall be made as soon as the offer is joined with the acceptance subject to the conditions which the law in additions prescribes.
Jordanian Civil Code, above n 145, art 90.
- 190.
See Jordanian Civil Code, above n 145, arts 116–134 that deal with the capacity to do contracts.
- 191.
See Jordanian Civil Code, above n 145, arts 157-164.
- 192.
See Jordanian Civil Code, above n 145, arts 165-166.
- 193.
In case that these conditions have not been fulfilled, the contract could be legally classified in the Jordanian Civil Code as void contract (arts 168-1), fasid contract (trained contract or voidable contract under French law) (arts 170-1), suspended (art 171), non-obligatory depending on which condition the contract is missing or incomplete (art 176).
- 194.
Article 93 of the Jordanian Civil Code provides that:
The expression of the will shall be by word, writing, the customary sign, even from a person who is not dumb, the actual exchange denoting consent and by any other behaviour which in the circumstances leaves no doubt of its indication of consent.
Jordanian Civil Code, above n 145, art 93.
- 195.
Al Sanhouri, above n 157, 146.
- 196.
Ibid,147.
- 197.
Article 90 of the Jordanian Civil Code provides:
The contract shall be made as soon as the offer is joined with acceptance subject to the conditions which the law in addition prescribes.
Jordanian Civil Code, above n 145, art 90.
- 198.
Article 102 of the Jordanian Civil Code provides that:
Contracting by telephone or any similar method shall in respect of the place be considered as it has been made between two present parties.
Jordanian Civil Code, above n 145, art 102.
- 199.
Article 7 of Electronic Transaction law No. of 85 of 2001 provides:
-
A.
The electronic records, contracts, messages, and signatures shall be considered to produce the same legal consequences resulting from the written documents and signatures in accordance with the provisions of the Laws in force in terms of being binding to the parties concerned or in terms of fitness thereof as an evidential weight.
-
B.
The legal consequence stated in Paragraph (A) of this Article shall not be excluded for reasons of conducting the transaction by electronic means so long as it complies with the provisions of this Law.
Article 13 of the Electronic Transaction law No. of 85 of 2001 provides:
The electronic message shall be considered as a means of expressing the will legally admissible for offer or acceptance for contractual intent.
Electronic Transaction Law No. 85 of 2001, Official Gazette No 4524, 31 February 2001 (Electronic Transaction Law), art 7, art 13 <http://www.lob.gov.jo/ui/laws/search_no.jsp?no=85&year=2001>.
-
A.
- 200.
See, on shrink-wrap agreements, Cardona, above n 12, 53.
- 201.
Professor Nouri Khater argues that click-wrap agreements constitute valid contracts. The contract is concluded when the user either opens the product online or offline, which constitutes an implied acceptance to the offer that has been put forward by the seller. The user has to respect all his obligations as a buyer when he accepts the agreements, and in the case that there is no fulfilment of the obligation under the contract, there could be a breach of the contract law under the law. See, Nouri Khater, The Licence Contract on Shrink Wrap and Click Wrap—A study of Art 12 of the UAE Federal Law No 6 of 2002 Concerning Copyrights and Neighbouring Rights (in Arabic) 7 (on file with author).
Article 12 of the UAE Federal Copyright Law No. 7 of 2002 as amended provides:
Without prejudice to the provisions of article 9 of the Law herein; the transfer of financial rights, in respect of the works of computer software and applications thereof or data basis shall be subject to contractual license included or affixed on the product, either appearing on the medium that carry the program or on the computer screen, upon downloading or storing the program. The purchaser or user of such program shall observe the terms included in such license.
The UAE Federal Copyright Law No. 7 of 2002 as amended, art 12 <http://www.wipo.int/wipolex/en/text.jsp?file_id=124612>.
- 202.
Munich Open Source Software Case, above n 149. Section 305 (1) of the Civil Code in Germany defines standard business terms as follows:
-
(1)
Standard business terms are all contract terms pre-formulated for more than two contracts which one party to the contract (the user) presents to the other party upon the entering into of the contract. It is irrelevant whether the provisions take the form of a physically separate part of a contract or are made part of the contractual document itself, what their volume is, what typeface or font is used for them and what form the contract takes. Contract terms do not become standard business terms to the extent that they have been negotiated in detail between the parties.
See Civil Code in Germany, as amended (latest amendment 28 September 2009) <http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#BGBengl_000P305>.
-
(1)
- 203.
Frankfurt Open Source Software Case, above n 149.
- 204.
Martin Von Willbrand commented that:
One can conclude that the above paragraph does not concern enforcement of the GPL, but rather appreciation of fulfilment of the contract between EDU 4 and AFPA. To the extent that the decision relates to the terms of the GPL, it is very limited in reach. It may be noted that the removal of copyright and similar notices could be considered violations of law, and not merely violation of GPL license requirements.
Martin von Willebrand, ‘A Look at EDU4 v. AFPA, also Known as the “Paris GPL Case”’ (2009) 1 (2) International Free and Open Source Software Law Review 124 <http://www.ifosslr.org/ifosslr/article/download/17/42>. See also Fabrice Perbost and Alan Walter, ‘Open Source Software in France’ in Ywein Van den Brande, Shane Coughlan and Till Jaeger (ed), The International Free and Open Source Software Law Book <http://ifosslawbook.org>.
- 205.
Till Jaeger, Enforcement of the GNU GPL in Germany and Europe (2010) 1 (1) International Free and Open Source Software Law Review <http://www.jipitec.eu/issues/jipitec-1-1-2010/2419/dippadm1268746871.43.pdf> 37. See also Willbrand, above n 204.
- 206.
Willbrand, above n 204.
- 207.
See also William Reynell Anson, Anson's Law of Contract (Oxford University, 1998).
- 208.
Jordanian Civil Code, above n 145, art 208.
- 209.
Article 210 of the Jordanian Civil Code provides as follows:
-
1.
A person may contact in his own name on rights he stipulated for the benefit of a third party if he has an interest in their fulfilment whether material or moral.
-
2.
The said stipulation shall result in the earning by the third party of a direct right against the undertaker in the fulfilment of the stipulation by the latter from whom he can claim fulfilment unless it is otherwise agreed and that undertaker may avail himself of the defences resulting from the contract against the beneficiary
-
3.
And the person who made the stipulation may claim the fulfilment of what he stipulated for the benefit of the beneficiary unless it is ascertained from the contract that the beneficiary is the sole owner of the right therein.
Jordanian Civil Code, above n 145, art 210.
-
1.
- 210.
Section 6 of the GNU GPL provides as follows:
Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
The GNU GPL version 2 <http://www.gnu.org/licenses/gpl-2.0.html>.
- 211.
Rod Dixon, Open Source Software Law (Artech Home, 2004) 24.
- 212.
Anne Fitzgerald, Neale Hooper and Brian Fitzgerald, ‘Enabling Open Access to Public Sector Information With Creative Commons Licences: The Australian Experience’ in Brian Fitzgerald (ed), Access to Public Sector Information: Law, Technology and Policy (2010, Sydney University) Vol 1, 71, 93.
- 213.
Cardona, above n 12, 66. See also Yang Xia, ‘Introduction to Software Protection Under Chinese Law’ in Brande, Coughlan and Jaeger, above n 204, 6.
- 214.
Frankfurt Open Source Software Case. The District Court of Munich also noted:
If the open development of the software is endangered by the invalidity of the clause and a fundamental concept of open source software is affected, there is – in the opinion of the Panel – considerable ground for the argument that in such cases there has been no agreement in rem at all with the consequence that any use of the software is illegal.
Munich Case, above n 149.
- 215.
Copyright Law, above n 170, arts 46-55. See also Fabrice Perbost and Alan Walter, ‘Open Source Software in France’ in Brande, Coughlan and Jaeger, above n 204, 8-9.
- 216.
Gulbault and Daalen, above n 8, 78; Louis Carbonneau, Open Source: The Good, the Bad and the Ugly (17 March 2011) <http://www.fizzlaw.com/article/open-source-the-good-the-bad-and-the-ugly>.
- 217.
Metxger and Jaeger, above n 9, 69.
- 218.
See Sections 11 and 12 GNU GPL <http://www.gnu.org/licenses/gpl.html>.
- 219.
The Jordanian Civil Code does not specify specific rules for contractual liability under one section. Jordanian Civil Code, above n 145, arts 199(2), 202, 213, 241. For further explanation, see Nouri Khater and Adnan Serhan, above n 162, 312-338.
- 220.
See Jordanian Civil Code, above n 145, arts 256-287. Khater and Serhan, above n 162, 368-470; Gulbault and Daalen, above n 8, 81.
- 221.
Jordanian Civil Code, above n 145, arts 88, 93, 214 and 199. See also Khater and Serhan, above n 162, 28-33.
- 222.
See Jordanian Civil Code, above n 145, art 213 and art 514.
- 223.
Khater and Serhan, above n 162, 333.
- 224.
Article 270 of the Jordanian Civil Code provides:
Any condition for exemption from the liability resulting from the injurious act shall be void.
Jordanian Civil Code, above n 145, art 270.
- 225.
Article 358 of the Jordanian Civil Code provides:
-
1.
If the obligation of the debtor is the preservation of a thing or its administration or the exercise of care in the performance of his obligation if he has exercised in its performance all that is exercised by an ordinarily person even if he has excursive in its performance all that is exercised by an ordinarily person even if the intended purpose us not achieved, unless the law or the contract otherwise provide
-
2.
And in any case the debtor shall remain liable for his deceit or gross default.
Jordanian Civil Code, above n 145, art 358. See also Khater and Serhan, above n 162, 335-336.
-
1.
- 226.
Sourceforge <http://sourceforge.net/>.
- 227.
Gregory B. Newby, Jane Greenberg and Paul Jones, ‘Open Source Development and Law Bolometric Patterns in Programming’ (2003) 54 (2) Journal of the American Society for Information Science and Technology 169–178 <http://portal.acm.org/citation.cfm?id=767383>.
- 228.
See also Andreas Weibe, ‘Validity of Open Source Licence’ (2004) 1 Computer Law Review International 156, 157-158.
- 229.
Along with others, including, Marcelo Tosatti, Alan Cox, and Andrew Morton.
- 230.
The Linux-Kernel Mailing List FAQ <http://www.tux.org/lkml/>.
- 231.
An author under art 4(A)(1) of the Copyright Law in Jordan is deemed to be ‘the person who publishes the work attributed to his own whether by indicating his name on the work or by any other way shall be considered the author unless there is proof to the contrary’.
Copyright Law, above n 170, art 4(A)(1).
- 232.
Article 3 of the Copyright Law in Jordan states that:
Protection is given to authors with innovative literary, artistic and scientific works regardless of their kind, importance or the purpose of their production.
(C) The right to translate his work into another language, adapt it, orchestrate it, or make any alteration thereto.
See Copyright Law, above n 170, art 3(C).
- 233.
Article 35(A) of the Copyright Law in Jordan provides that:
If more than one person contributed to making a single work such that the share contributed by each cannot be separated, they shall be considered as owners of the work with each having an equal share unless they agree to do something different. None of them shall, in this case, exercise the copyrights with respect to this work without the consent of all the authors.
See Copyright Law, above n 170, art 35(A).
- 234.
Article 35(C) of the Copyright Law in Jordan provides that:
If a group participated in innovating a work under the direction of a natural or juridical person (called a collective work) and that person committed himself to publish the said work under his name and his control such that the contributions of the participants merged into the general purpose intended by that person for the work or the idea which he innovated for it such that the contribution of each of the contributors in the work cannot separated and distinguished apart, then the person who directed and arranged the innovation of the work shall be considered the author and shall have exclusively the right to exercise its copyrights.
See Copyright Law, above n 170, art 35(C).
- 235.
Gulbault and Daalen, above n 8, 91-95.
- 236.
Professor Makeen Makeen has noted that:
The special category of ‘collective works’ was developed initially in France to coverdictionaries. It was designed to regulate the exploitation of works made by several contributors,in which it is impossible to identify the part contributed by each author.
See Makeen F. Makeen, ‘Authorship/Ownership of Copyright works under Egyptian Author’s Rights’ (2007) 35 (5) International Review of Intellectual Property and Competition Law 571, 582-585.
- 237.
Article 35(B) of the Copyright Law in Jordan provides that:
However if it is possible to separate the share of each of the contributors to the work apartfrom the shares of the other contributors, then each of them shall have the right to exploit thecopyright in the part he contributed to the work provided that this exploitation causes nodamage to the exploitation of the work itself and does not infringe the rights of all the partnersin the work, unless they agreed to something different.
Copyright Law, above n 170, art 35(B).
- 238.
Peter W. Hansen, Intellectual Property and Practice of the United Arab Emirates (Oxford University, 2009) 177-178.
- 239.
Ibid.
- 240.
Section 2 of the GNU GPL provides that:
These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.
The GNU GPL version 2 <http://www.gnu.org/licenses/gpl-2.0.html>.
- 241.
Gulbault and Daalen, above n 8, 91-95.
- 242.
See also Eben Moglen, Why FSF Gets Copyright Assignment From Contributors Gnu.org <http://www.gnu.org/licenses/why-assign.html>.; Omar Johnny, Marc Miller and Mark Webbink, ‘Copyright in Open Source Software Understanding The Boundaries’ (2010) 2 (1) International Free and Open Source Software Law Review <http://www.ifosslr.org/ifosslr/article/view/30>; Andrew Stokes, ‘Authorship, Collaboration and Copyright: A view from the United Kingdom’ (2002) 13 (6) Entertainment Law Review 121-127.
- 243.
Fontana et al., above n 139. See also Aaron Krowne and Raymond Puzio, The Fog of Copyleft (2006) 11 (7) First Monday <http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/1368>.
- 244.
Katz, above n 70, 19.
- 245.
Gulbault and Daalen, above n 8, 112; Lambert, above n 36.
- 246.
FSF, What is Copyleft Gnu.org <http://www.gnu.org/copyleft/>.
- 247.
Richard Stallman, What is Copyleft? Gnu.org <http://www.gnu.org/copyleft/copyleft.html>.
- 248.
Section 2(B) of the GNU GPL states:
You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.
The GNU GPL version 2, <http://www.gnu.org/licenses/gpl-2.0.html>. See also Laurent, above n 140.
- 249.
It provides as follows:
Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
The GNU GPL version 2 <http://www.gnu.org/licenses/gpl-2.0.html>.
- 250.
Section 4 of the GNU GPL provides as follows:
You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.
The GNU GPL version 2 <http://www.gnu.org/licenses/gpl-2.0.html> See also Metxger and Jaeger, above n 9, 63 <http://www.campussource.de/org/opensource/docs/art10.pdf>.
- 251.
Gulbault and Daalen, above n 8, 99
- 252.
Article 9 of the Copyright Law in Jordan provides:
The author shall have the right to financially exploit his work in any way he chooses. No other person may exercise this right without his written permission, or the permission of his successors. This right shall include:
A. The right to print broadcast and produce his work.
B. The right to reproduce his work through all physical means such as photography, cinematography or recording.
C. The right to translate his work into another language, adapt it, orchestrate it, or make any alteration thereto.
D. The right to allow usage of one or more copies of his work by persons using them for rental, lending or other actions related to displaying the work to the public.
E. The right to convey his work to the public through recital, display, acting, radio or television broadcasting, cinema or through any other means.
F. The right to convey his work to the public through recital, display, acting, radio or television broadcasting, cinema or through any other means.
Copyright Law, above n 170, art 9.
- 253.
If any person exploits these rights without the author’s permission, this will be considered as an infringement; see Copyright Law, above n 170, arts 49-55.
- 254.
Copyright Law, above n 170, art 28.
- 255.
Assignment encompasses the transfer of rights held by one party—the assignor—to another party—the assignee. See also Upex, R. V. et al., Davies on Contracts (Sweet & Maxwell, 2008) 209–222.
- 256.
Copyright Law, above n 170, art 11 and 34.
- 257.
The Civil law system differentiates between two kinds of rules, default and mandatory rules. Whereas the default rules can be modified by agreement of the parties, mandatory rules cannot be modified by the parties, and in case of the parties agreeing to do so, the contract shall be considered null and void. Article 163 of the Jordanian Civil Code gives a non-conclusive list of matters that are considered as public order that parties entering into a contract cannot be in contrast with. Article 163 of the Jordanian Civil Code provides:
-
1.
The subject matter shall be a matter to which the provisions of the contract can be applied
-
2.
And if the legislator prohibits dealings in a thing or if it shall be contrary to public orders or morals the contract shall be void.
-
3.
The provisions relating to personal status like capacity and succession and the provisions relating to transfer, the procedures prescribed for disposition of the property of al waqaf and immovable property, the disposition of property of an interdicted person, al-waqaf property and the property of the State, the legislation relation the obligatory fixing or prices and all legislation enacted to cope with the needs of consumers in exceptional circumstances, shall be considered matters of public order.
Jordanian Civil Code, above n 145, art 163. Unfortunately, the copyright law in Jordan does not clearly delineate between mandatory and default rules. Courts should look to the language of the relevant provisions in determining what rules are mandatory. See Makeen, above n 237; Cem Kaner, Law of Software Contracting: New Rules Coming (July 2007) <http://www.kaner.com/pdfs/Law%20of%20Software%20Contracting.pdf>; Cardona, above n 12, 73.
-
1.
- 258.
See also art 37 of the repealed Copyright Law No. 354 of 1954 in Egypt (in Arabic) <http://upload.wikimedia.org/wikipedia/commons/e/e8/Egyptian_Copyright_Law_354_of_1954.pdf>.
- 259.
Article 149 of Intellectual Property Law No. 82 of 2002 in Egypt. Article 150 of the same law provides:
The author shall be entitled to such remuneration, in cash or in kind, as he considers fair for the transfer of one or more of the economic rights of his work to a third party, on the basis of a percentage of the revenue made as a result of exploitation, a lump sum or a combination of both.
See Law No. 82 of 2002 (Law on the Protection of Intellectual Property Rights), Al-Jarida Al-Rasmiyya, 3 June 2002, (Egypt) <http://www.wipo.int/wipolex/en/text.jsp?file_id=126540>; see also Egypt, WIPO <http://www.wipo.int/wipolex/en/details.jsp?id=7296>.
- 260.
Makeen, above n 237, 577.
- 261.
Hansen, above n 236, 229.
- 262.
Nouri Khater, Explanation of Intellectual Property Rules—Copyright and Neighbouring Rights (Emirates University, 2008) 307. See Al Sanhouri, above n 157, vol 8, 383-390.
- 263.
The French Intellectual Property Code (Code de la propriété intellectuelle) (France), art 131-3. In another translation provided by Legi France, art 131-3 of the Intellectual Property Law provides:
Transfer of authors’ rights shall be subject to each of the assigned rights being separately mentioned in the instrument of assignment and the field of exploitation of the assigned rights being defined as to its scope and purpose, as to place and as to duration.
See Code de la Propriété Intellectuelle [C.P.I.] L131-3 (France) http://www.legifrance.gouv.fr/html/codes_traduits/cpialtext.htm (French Intellectual Property Code No. 92-597 of 1 July 1992 as amended).
- 264.
Julie Ruelle, French Court Holds that any Assignment of Copyright Must be Clearly Set Out its Scope and Terms (17 December 2007) Bird & Bird <http://www.twobirds.com/English/News/Articles/Pages/2007/French_court_assignment_copyright_set_terms.aspx>.
- 265.
Article 31(1) of the Copyright Law as amended in Germany provides:
The author may grant a right to another to use the work in a particular manner or in any manner (exploitation right). An exploitation right may be granted as a non-exclusive right or as an exclusive right and maybe limited geographically, temporarily or with regard to content.
The German Author’s Rights as amended (amendments dated 27 October 2009), art 31 (1) <http://www.transpatent.com/gesetze/urhg.html>. See also the Munich Open Source Software Case, above n 149; Tim Engelhardt, ‘Free and Open Software—Under German Law’ in Brande, Coughlan and Jaeger, above n 204.
- 266.
In the Frankfurt Open Source Software Case, the Court found the GNU GPL does not constitute a waiver of the Copyright Law in Germany. The court noted that:
In particular, the conditions of the GPL can in no case be interpreted to contain a waiver of legal positions afforded by copyright law. The GPL precisely stipulates that the freedom to use, modify and distribute the corresponding software initially afforded by way of a grant of a non-exclusive license to everyone is automatically terminated upon a violation of the GPL (cf. Dreier/Schulze, § 69a, Rz.11).
Frankfurt Case, above n 149.
- 267.
Munich Case, above n 149.
- 268.
Article 165 of the Jordanian Civil Code provides that:
1. The cause is the direct purpose intended in the contract.
2. And it shall be existent, valid, permissible and not contrary to public orders and morals.
Article 166 provides that
1. The contract shall not be valid unless it entails a lawful benefit for its parties.
2. And in contracts that lawful benefit shall be deemed to exist unless there is evidence to the contrary.
Jordanian Civil Code, above n 145, arts 165-166.
- 269.
Section 3 of the GNU GPL, version 3 provides that:
All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met. This License explicitly affirms your unlimited permission to run the unmodified Program. The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work. This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.
The GNU GPL version 3 <http://www.gnu.org/licenses/gpl.html>
- 270.
Ruben Iglesias Posse, ‘The Legal Status of Copyleft Before the Spanish Courts’ (2009) 4 (11) Journal of Intellectual Property and Practice 815, 824.
- 271.
See the situation in France, Julien Dufay and Xavier Pican, ‘The Erosion of the Moral Right: Comparison France-United States’ (2004) 4 International Business Law Journal 461-488.
- 272.
Gulbault and Daalen, above n 8, 122-128.
- 273.
Metxger and Jaeger, above n 9, 64.
- 274.
Silke Von Lewinski, International Copyright Law and Policy (Oxford University, 2008) 47-48.
- 275.
Copyright Law, above n 170, art 8.
- 276.
Article L121-1 of the French Intellectual Property Code provides that:
An author shall enjoy the right to respect for his name, his authorship and his work. This right shall attach to his person. It shall be perpetual, inalienable and imprescriptible. It may be transmitted to mortis causa to the heirs of the author.
French Intellectual Property Code, above n 263, L121-1. See also Dufay and Pican, above n 271, 464. See also Posse, above n 270, 824.
In Mahkamat al-Tamiex [Taimez], Court of Cassation, Civil Division) No. 2648/2003, 11 November 2001, it was mentioned that according to arts 3, 8, and 9 of the Copyright Law in Jordan, moral rights are personal rights protected even after the death of the author. The new draft of the Copyright Law of 2010 in Jordan provides clearly in art 7 that moral rights are perpetual and inalienable.
- 277.
See also section 3 and 4 of the GNU GPL, version 3, provides that:
-
3.
You may convey a work based on the Program, or the modifications to produce it from the Program, in the form of source code under the terms of section 4, provided that you also meet all of these conditions: a) The work must carry prominent notices stating that you modified it, and giving a relevant date.
-
4.
Conveying Verbatim Copies. You may convey verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice; keep intact all notices stating that this License and any non-permissive terms added in accord with section 7 apply to the code; keep intact all notices of the absence of any warranty; and give all recipients a copy of this License along with the Program.
The GNU GPL version 3 <http://www.gnu.org/licenses/gpl.html>. See also González, above n 24, 155.
-
3.
- 278.
The Visual Artists Rights Act of 1990 (VARA) in the US recognises moral rights only in visual art. <http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106---A000-.html>.
- 279.
The Preamble of the GPL states:
Also, for each author's protection and ours, we want to make certain that everyone understands that there is no warranty for this free software. If the software is modified by someone else and passed on, we want its recipients to know that what they have is not the original, so that any problems introduced by others will not reflect on the original authors’ reputations.
See section 2 of the GPL that provides:
2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:
c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. … Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.
The GNU GPL version 2 <http://www.gnu.org/licenses/gpl-2.0.html> See also, Gulbault and Daalen, above n 8, 91-95, 125; Laurent, above n 140, ch 3, 38; Metxger and Jaeger, above n 9, 64.
- 280.
Metxger and Jaeger, above n 9, 64; Gulbault and Daalen, above n 8, 123.
- 281.
Article L121-7 of the French Intellectual Property Code provides:
Except for any stipulation more favourable to the author, such author may not:
-
1.
Oppose modification of the software by the assignee of the rights referred to in item 2 of Article L122-6 where such modification does not prejudice either his honour or his reputation;
-
2.
Exercise his right to reconsider or of withdrawal.
Article L122-6 of the French Intellectual Property Code provides:
Subject to the provisions of Article L122-6-1, the exploitation right belonging to the author of the software shall include the right to do or to authorize:
-
1.
The permanent or temporary reproduction of software by any means and in any form, in part or in whole. Insofar as loading, displaying, running, transmission or storage of the software necessitate such reproduction, such acts shall be possible only with the authorization of the author;
-
2.
The translation, adaptation, arrangement or any other alteration of software and the reproduction of the results thereof;
-
3.
The placing on the market for consideration or gratuitously, including rental, of the software or of copies thereof by any process. However, the first sale of a copy of software on the territory of a Member State of the European Community or of a State party to the agreement on the European Economic Area by the author or with his consent shall exhaust the right of placing on the market of that copy in all Member States, with the exception of the right to authorize further rental of a copy.
French Intellectual Property Code, above n 263, L121-7, L122-6.
-
1.
- 282.
Article 71 of the Copyright, Design and Patent Act of 1988, as amended, in the UK provides:
-
(1)
The right conferred by section 77 (right to be identified as author or director) is subject to the following exceptions….
-
(2)
The right does not apply in relation to the following descriptions of work
-
(a)
a computer program;
-
(b)
the design of a typeface;
-
(c)
any computer-generated work.
-
(a)
Article 81 of the Copyright, Design and Patent Act of 1988, as amended, in the UK provides:
-
(1)
The right conferred by section 80 (right to object to derogatory treatment of work) is subject to the following exceptions….
-
(2)
The right does not apply to a computer program or to any computer-generated work..
The Copyright, Design and Patent Act of 1988 as amended (UK), art 71-81. <http://www.legislation.gov.uk/ukpga/1988/48/contents>
-
(1)
- 283.
J.A.L Sterling, World Copyright Law (Sweet and Maxwell, 2003) 350, 351.
- 284.
Jill Appelbaum gives the following example ‘.. if an author of a book authorizes a third party to adapt his work into a play, courts may find that he implicitly waived his integrity rights (such as a change in medium)’. See Jill R. Applebaum, ‘The Visual Artists Rights Act of 1990: An Analysis Based on the French Droit Moral’ (1992) 8 American University Journal of International Law and Policy 183, 189.
- 285.
Professor James M. Treece from the University of Texas notes:
[T]he notion that the moral right is inalienable is riddled with exceptions: the courts consistently permit reasonable changes without the author’s consent in collective works and in adaptations-where changes are necessary-and courts enforce express as opposed to tacit waivers of the moral right.
James M. Treece, ‘American Law Analogues of the Author’s “Moral Right” (1968) 16 (4) The American Journal of Comparative Law 487, 506. See also Russel J. DaSilva, ‘Droit Moral and Amoral Copyright: A Comparsion of Artits’ Rights in France and the United States’ (1980) 28 Bulletin of the Copyright Society 1.
- 286.
Paul Goldstein and Bernt Hugenholtz, International Copyright: Principles, Law and Practice (Oxford University, 2010) 356-357 (quoting “le Petit Prince,” Court of Cassation, 12 June, 2001, 191 R.I.D.A 266 (2002), noting that a contract allowing animated film adaptation of Saint-Exupery work, the Little Prince, implies “a degree of freedom afforded to the adapter”, moral right notwithstanding)).
- 287.
See Makeen F. Makeen, ‘Moral Rights Protection under Egyptian Author’s Rights Law’ (2007) 83 (1) International Review of Intellectual Property and Competition Law 51, 63.
- 288.
French Intellectual Property Code, above n 263, art L121-7; art L122-6.
- 289.
Nowaf Kanan, Copyright Law (in Arabic) (2004) 110.
- 290.
Sterling, above n 283, 351.
- 291.
Ibid.
- 292.
Munich Case, above n 149; Frankfurt Case, above n 149.
- 293.
The GNU GPL provides in the end of its terms that:
If you develop a new program, and you want it to be of the greatest possible use to the public, the best way to achieve this is to make it free software which everyone can redistribute and change under these terms.
To do so, attach the following notices to the program. It is safest to attach them to the start of each source file to most effectively convey the exclusion of warranty; and each file should have at least the ‘copyright’ line and a pointer to where the full notice is found.
one line to give the program's name and an idea of what it does.
Copyright (C) yyyy name of author.
The GNU GPL version 2 <http://www.gnu.org/licenses/gpl-2.0.html>.
- 294.
It should be noted that not every reuse and modification of code will amount to a breach of the right of integrity.
- 295.
French Intellectual Property Code, above n 263, art L121-7, art L122-6. See also Goldstein and Hugenholtz, above n 286; Appelbaum, above n 284; Treece, above n 285; Sterling, above n 283.
- 296.
French Intellectual Property Code, above n 263, art L121-7, art L122-6.
- 297.
The Software Freedom Law Centre (SFLC) in the US and the GPLviolations.org Organisation in Europe both developed their own procedures to deal with violations of the GNU GPL that are brought to their attention. Usually, they would contact the licensee and request him to come ‘into compliance with the GNU GPL terms and conditions or alternatively, cease copying, modifying or distributing the GNU GPL software’. See SFLC <http://www.softwarefreedom.org/>; Gpl-violations.org, Project Prevails in Court Case on GPL Violation by D-Link <http://gpl-violations.org/news/20060922-dlink-judgement_frankfurt.html>; Till Jaeger, ‘Enforcement of the GNU GPL in Germany and Europe’ (2010) 1 Journal of Intellectual Property, Information Technology and E-Commerce Law 34, 37; James G. Gatto, ‘Doubts Wane over GPL Enforceability’ (2007) Managing Intellectual Property <http://www.pillsburylaw.com/siteFiles/Publications/A9A22185D029BBE6EAA4332F1A7249E2.pdf>; Bradely M. Kuhn, Aeron Williamson and Karen M. Sandler, A Practical Guide to GPL Compliance (2008) <http://www.softwarefreedom.org/resources/2008/compliance-guide.html>.
- 298.
Moglen, above n 73, 7; O’Sullivan, above n 28; Eben Moglen, Enforcing the GPL (2001) Linux for Devices <http://www.linuxfordevices.com/c/a/Linux-For-Devices-Articles/Guest-editorial-Enforcing-the-GNU-GPL/>; Katz, above n 70, 19.
- 299.
Posse, above n 270, 816.
- 300.
On 19 May 2004, a Munich District Court granted a preliminarily injunction against the defendant, Sitecom Deutschland GMbH, for using an open source software in one of its wireless products without complying with certain notice requirements of the GNU GPL. The Court of Appeals agreed with the findings of the Court of First Instance and ruled that the defendant was in violation of the GNU GPL conditions and that this constituted a copyright infringement. See the Munich Case, above n 149; Gatto, above n 297.
- 301.
Another case was brought before the Munich District Court in 2005. The plaintiff, Welte, filed a case against Forntient, alleging that the defendant ‘was using Linux in its own code without releasing modification under the GPL’. The case was settled out of court when Forntient complied with its obligations under the licence. See Guadamuz, above n 28, 386.
- 302.
In September 2006, the Frankfurt District Court ordered the defendant, D-link, to pay damages (out-of-court enforcement expenses and legal fees) to Welte’s GPL-violations.org project, which they incurred for bringing the defendant into compliance with the terms and conditions of the GNU GPL. The Court confirmed that the GNU GPL is valid under German law and, for the first time, ordered the payment of damages in such a dispute. See the Frankfurt Case, above n 149; Gatto, above n 297.
- 303.
Harald Welte also brought another case before the First Regional Court in Munich against Luxembourg-based Skype Technologies, alleging that they failed to provide the source code royalty-free and attach the text of the GNU GPL licence. The Court issued its decision on July 2007 in favour of the plaintiff and ordered the defendant to comply with its obligations under the licence. See Groklaw, GPL Upheld in Germany Again—Translation <http://www.groklaw.net/articlebasic.php?story=2007072513105421>.
- 304.
In France, the Association pour la Formation Professionnelle des Adultes (AFPA) filed a suit against Edu4 in 2002 for violation of the ‘copyleft’ clause. The Paris Court of Appeals examined the GNU GPL as a preliminary question and decided in September 2009 that the defendant violated the terms and conditions of the GNU GPL when he denied users access to its corresponding source code. The French legal system allowed a user of the GNU GPL to file this case as he was granted rights from the author who allowed him to do so. See, Opendot Blogspot, Big Win for GNU GPL in France (2009) <http://opendotdotdot.blogspot.com/2009/09/big-win-for-gnu-gpl-in-france.html>; Ryan Paul, Big GPL Copyright Enforcement win in Paris Court of Appeals (24 September 2009) Ars Technica <http://arstechnica.com/open-source/news/2009/09/big-gpl-copyright-enforcement-win-in-paris-court-of-appeals.ars>; Jaeger, above n 297, 37, para.1.
- 305.
In 2002, MYSQL brought a suit before the United Stated District Court against Progress Nusphere for not distributing a database linked to their product, which was under the GNU GPL. In that case, the Court treated the GNU GPL as an enforceable and binding licence but refused to issue the injunction requested by the plaintiff. The case was eventually settled out of court. In 2005, the US District Court for Indiana considered the legality of the GNU GPL in Wallace v Free Software Foundation Inc. It decided that ‘the GPL is a vertical agreement (meaning it is an agreement among different levels of users within the same chain of distribution) and, as such, cannot alone form the basis of a per se violation of U.S antitrust laws’. See Gatto, above n 297. See also, Planetary Motion, Inc. V. Techsplosion, Inc, where the court decided that “the GNU GPL is not necessarily ceded to the public domain and the licensor purports to retain ownership rights …’ 261 F 3d 1188, 1198 (11th circuit). See also Guadamuz, above n 28, 385; Jonathan Zittrain, Isaac Lidsky, Dotan Oliar and Bekhzod Abdurazzakov, Alternatives to Intellectual Property (2006) <http://cyber.law.harvard.edu/ilaw/mexico_2006_module_2_alttoip> (on file with author).
- 306.
On 11 December 2008, FSF filed a case against Cisco Systems Inc. for copyright infringement because it distributed programs under the GPL and LGPL without respecting the obligations of those licences. FSF later withdrew the case as both parties reached a settlement agreement under which Cisco Systems would establish a compliance department that would work closely with the FSF to achieve full compliance with the terms and conditions of the GNU GPL. See Wegbrait, above n 95, 22-23; Guadamuz, above n 28, 387.
- 307.
2008 U.S. App. LEXIS 17161 (Fed. Cir. 2008).
- 308.
Fitzgerald and Olwan, above n 36.
- 309.
The Appeals Court noted that:
Public licenses, often referred to as open source licenses, are used by artists, authors, educators, software developers, and scientists who wish to create collaborative projects and to dedicate certain works to the public. Several types of public licenses have been designed to provide creators of copyrighted materials a means to protect and control their copyrights. Creative Commons, one of the amicicuriae, provides free copyright licenses to allow parties to dedicate their works to the public or to license certain uses of their works while keeping some rights reserved.
See Jacobsen v. Katzer 2008 U.S. App. LEXIS 17161 (Fed. Cir. 2008) 3.
- 310.
For example, the discussion as to whether to treat the GNU GPL as a contract or as a bare licence would not play a major role under the civil legal system in Jordan. This is because the law in Jordan does not recognise bare licences but only contracts, which should be in accordance with arts 34-241 of the Jordanian Civil Code.
- 311.
WIPO, WIPO Forum on Private International Law and Standard Policy (29 January 2001) <http://www.wipo.int/edocs/mdocs/mdocs/en/wipo_pil_01/wipo_pil_01_9.pdf>.
- 312.
The Jordanian Constitution does not have a specific provision that deals with the relationship between an international treaty and domestic law, but Jordanian courts have ruled in some cases that treaties should be given more weight in case a conflict arises between an international treaty and domestic law. See, for further explanation, Fayad Al Qudah, ‘The Legal Protection of Databases: A Study of the Jordanian Law’ (2008) 22 Arab Law Quarterly 359, 365.
- 313.
Opendot Blogspot, above n 304.
- 314.
Gatto, above n 297.
- 315.
Ibid.
- 316.
For example, in Jordan there is currently a small but growing group of Linux and open source software users. See Robin ‘Roblimo’ Mille, Advocating Linux and Open Source in Amman, Jordan (24 December 2002) Linux < http://archive09.linux.com/feature/27045>.
- 317.
Ibid.
- 318.
Rizk and Shaver, above n 81, 168
- 319.
CIBESA, FOSS Incorporation in African ICT Development: Should it be a Government Initiative or Simply Market-Driven? <http://www.cipesa.org/african_voices/155>.
- 320.
Cutler & Company, above n 99.
- 321.
Ibid.
- 322.
Rizk and Shaver, above n 81, 168.
- 323.
See Flickr <http://www.flickr.com/>.
- 324.
See Google <http://www.google.com.au/ig?hl=en>.
- 325.
See MIT <http://ocw.mit.edu/index.htm>.
- 326.
See Public Library of Science <http://www.plos.org/>.
- 327.
See Wikipedia <http://www.wikipedia.org/>.
- 328.
See Aljazeera <http://cc.aljazeera.net/>.
- 329.
See the White House <http://www.whitehouse.gov/>.
- 330.
They believed that the DMCA had gone too far in protecting the commercial interests of copyright owners on the account of the public interests. See Terry Flew, ‘Creative Commons and Creative Industries’ 2005 Media and Arts Law Review 10 (4), 257-264 <http://eprints.qut.edu.au/39367/>; Maureen O’Sullivan, ‘Creative Commons and Contemporary Copyright: A Fitting Shoe or “a load of old Cobblers?’ (2008) First Monday 13 (1) <http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/2087/1919>.
- 331.
See Flew, above n 330, 10; Bas Bloemsaat and Pieter Kleve, ‘Creative Commons: A Business Model for Products Nobody Wants to Buy’ (2009) 23 (3) International Review of Law, Computers and Technology 237-249; Severine Dusollier, ‘The Master’s Tolls v. The Master’s House: Creative Commons vs. Copyright’ (2006) 29 (3) Columbia Journal of Law and Arts 271-293; Arianna Enjung Cha, Creative Commons is Rewriting Rules of Copyright, Washington Post (online), 15 March 2005 <http://www.washingtonpost.com/wp-dyn/articles/A35297-2005Mar14.html>; Adrenne K. Goss, ‘Codifying A Commons: Copyright, Copyleft, and the Creative Commons Project’ (2007) 82 (2) Chicago Kent Law Review <http://www.cklawreview.com/wp-content/uploads/vol82no2/Goss.pdf>; Noric Dilanchian, Creative Commons Licences are Useful but Oversold ( 2 January 2008) Dlanchain Lawyers and Consultants <http://www.dilanchian.com.au/index.php?option=com_content&view=article&id=233:creative-commons-licences-are-useful-but-oversold&catid=5:ip-tech-a-e-biz&Itemid=144>; David Mathison, Be the Media, How to Create and Accelerate Your Message, Your Way (Natural E Creative, 2009) 427-441.
- 332.
The offering of CC of various licences for the public for free was inspired by earlier initiatives such as FSF’s Foundation’s GNU GPL developed by Richard Stallman. See Creative Commons, History of Creative Commons <http://creativecommons.org/about/history/>.
- 333.
Flew, above n 330.
- 334.
By establishing CC, he was aiming ‘to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules’. This was to support ‘a rich public domain’ by offering creators and other holders of copyright free and easy-to-use legal and technical tools that would help them publish and distribute their works over the Internet. See, for explanation of Creative Commons, Lawrence Lessig, The Future of Ideas, the Fate of Commons in a Connected World (Random House; 2001); Lawrence Lessig, Free Culture: How Big Media Uses Technology to Lock Down Culture and Control Creativity (Penguin, 2004) See also Ben Adidda, Creative Commons Announced (16 May 2002) <http://creativecommons.org/press-releases/entry/3421>.
- 335.
Professor Lawrence Lessig, the founder of CC, was of the opinion, in a number of influential books he published, that the Internet should remain open and innovative, and to do that, we should not place laws, particularly IP laws (copyright), that restrict the freedom of Internet users to access and use creative works. See Lessig (2004), above n 334.
- 336.
Stephanie Woods, Creative Commons –A Useful Development in the New Zealand Copyright Sphere? (2008) 14 (1) Canterbury Law Review 31, 52.
- 337.
The first is a legal document that is mostly useful for lawyers as it contains detailed legal provisions explaining the rights and obligations of the original creators of the work and users. The human readable version is a simple document that is written for non-lawyers (laymen) who cannot understand the complex legal provisions that are involved in contract and copyright licensing. Finally, there is also the digital code (metadata), which allows the machine to search for CC-licensed works over the Internet. See Lessig (2004), above n 334. See also Catharina Maracke, ‘Creative Commons International: The International License Porting Project–Origins, Experiences and Challenges’ 1 (2010) Journal of Intellectual Property, Information Technology and E-Commerce Law (JIPITEC) 4, 5; CC, Creative Commons Licences <http://creativecommons.org/about/licenses/>.
- 338.
There are six licenses that users can choose from, and these include Attribution (BY), Attribution ShareAlike (BY-SA), Attribution No Derivatives (BY-ND), Attribution Non-commercial (BY-NC), Attribution Non-commercial Share Alike (BY-NC-SA), and Attribution Non-commercial No Derivatives (BY-NC-ND). There are also specialised Creative Commons’ licences including the Public Domain Dedication (PD), CC GNU GPL and CC GNU GPL. See Creative Commons, Meet the Licences <http://creativecommons.org/about/licenses/meet-the-licenses>.
- 339.
To make the CC movement more internationally appealing, its founders wanted it to be different from the Free Software movement, which is why they created iCommons, asking intellectual law experts from around the world to translate the licences into their languages and local legal systems. See Severine Dusollier, ‘Sharing Access to Intellectual Property through Private Ordering’ (2007) 82 (3) Kent Chicago Kent Law Review 1391, 1431; Mia Garlick, Creative Hamburg? Bah the Humbug, Let’s get Creative! (27 July 2005) Indicare <http://www.indicare.org/tiki-read_article.php?articleId=124>. See also CC, Overview of Porting <http://wiki.creativecommons.org/International_Overview>.
- 340.
Herkko Hietanen, ‘The Pursuit of Efficient Copyright Licensing — How Some Rights Reserved Attempts to Solve the Problems of All Rights Reserved’ (A PhD thesis, Lappeenranta University of Technology, 2008) 218.
- 341.
Ibid 44.
- 342.
Diane Peters, Version 4.0—License Draft Ready for Public Comment! (2 April 2012) Creative Commons <http://creativecommons.org/weblog/entry/32157?utm_campaign=newsletter_1204&utm_medium=email&utm_source=newsletter>.
- 343.
See Creative Commons <http://www.creativecommons.org>.
- 344.
Sharee L. Broussard, The Copyleft Movement: Creative Commons Licensing (September 2007) CBC Interactive <http://findarticles.com/p/articles/mi_7081/is_3_26/ai_n28457434/?tag=content;col1>.
- 345.
See Science Commons <http://sciencecommons.org/> and OER <http://www.oercommons.org/>.
- 346.
For criticism to Creative Commons, see the following: Niva Elkin-Koren, ‘Creative Commons: A Sceptical View of a Worthy Pursuit’ in P. Bernt Hugenholtz and Lucie Guibault (eds), The Future of the Public Domain, (Kluwer Law International, 2006) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466>; Bloemsaat and Kleve, above n 331; Dusollier, above n 331; David Berry and Giles Moss, On the “Creative Commons”: A Critique of the Commons without Commonalty is the Creative Commons Missing Something? <http://www.fabricemous.nl/wordpress/wp-content/uploads/2007/01/berry.pdf>; Dilanchian, above n 331; Péter Benjamin Tóth, ‘Creative Humbug’ (2005) Indicare Monitor 2 (4) <http://www.indicare.org/tiki-read_article.php?articleId=118>; Lawrence Liang, Free/ Open Source Software Open Content (2007) United Nations Development Programme –Asia-Pacific Development Information Programme (UNDP-APDIP) <http://www.apdip.net/publications/fosseprimers/foss-opencontent-nocover.pdf>; Andrew Orloowski, The Tragedy of Creative Commons (16 July 2009) <http://andreworlowski.com/tag/creative-commons/>; John C. Dvorak, Creative Commons Humbug (18 July 2005) PC Magazine <http://www.pcmag.com/article2/0,2817,1838244,00.asp>; Zachary Zatz, ‘Pitfalls of Open Licensing: An Analysis of Creative Commons Licences’ (2006) IDEA—The Intellectual Property Law Review, 46 (3) 391-413; Mikko Valimaki, The Rise of Open Source Licensing (Turre Publishing, 2005) 159-160 <http://lib.tkk.fi/Diss/2005/isbn9529187793/isbn9529187793.pdf>.
- 347.
Creative Commons says the following:
Creative Commons is a non-profit corporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright. We provide free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.
Zatz, above 346. See also Creative Commons <http://www.creativecommons.org>.
- 348.
Woods, above n 336, 57.
- 349.
Dilanchian, above n 331.
- 350.
As two commentators have explained:
Lessing’s attempt to make it easier to understand which creative works can, or cannot, be used for modification (due to copyright) has spawned a monster of a thousands heads. This would ultimately make creators of original work unsure of what rights they hold under the law and what they can actually license under the CC licensing scheme.
See Dusollier, above n 339, 1431; Garlick, above 339. See also, Creative Commons, Overview of Porting <http://wiki.creativecommons.org/International_Overview>; Berry and Moss; above n 346, Woods, above n 336.
- 351.
Valimaki, above n 346, 160; Koren, above n 346.
- 352.
Those licences are Attribution Non-Commercial (BY-NC), Attribution Non-Commercial Share Alike (BY-NC-SA) and Attribution Non-Commercial No Derivatives (BY-NC-ND) licences. See Creative Commons <http://creativecommons.org/about/licenses/meet-the-licenses>. See also Zatz, above n 346.
- 353.
CC, Defining Creative Commons, 14-15 <http://mirrors.creativecommons.org/defining-noncommercial/Defining_Noncommercial_fullreport.pdf>; Jessica Coates, Not Primarily Intended for Commercial Advantage or Profit: The Logic and Meaning of “non-commercial” in the Creative Commons Licences, (An LLM thesis, Melbourne University, 2009).
- 354.
Woods, above n 336, 28.
- 355.
See Copysouth <http://www.copysouth.org/>.
- 356.
Liang, above n 346.
- 357.
Ibid.
- 358.
Garlick, above n 339.
- 359.
Ibid.
- 360.
Rodro Nicoletti Mizukami and Ronaldo Lemos, ‘From Free Software to Free Culture: The Emergence of Open Business’ in Lea Shaver (ed), Access to Knowledge in Brazil (Bloomsbury, 2010) 53.
- 361.
Ibid.
- 362.
Dusollier, above n 331, 281.
- 363.
Anyone can apply to join, see CC Arab world group <http://groups.google.com/group/cc-arab-world>.
- 364.
Dusollier, above n 331, 279, 281.
- 365.
Woods, above n 336, 55.
- 366.
Maracke, above n 337, 6; Hietanen, above n 340, 109.
- 367.
Ronald Lemos, From Legal Commons to Social Commons: Brazil and the Culture Industry in the 21 Century, Center for Brazilian Studies, Oxford University, Working Paper Number CBS-80-07, 43 <http://virtualbib.fgv.br/dspace/bitstream/handle/10438/2677/Ronaldo%20Lemos%20-%20From%20legal%20commons%20to%20social%20commons.pdf?sequence=1>.
- 368.
Ibid 52.
- 369.
Ibid.
- 370.
MIT OCW <http://ocw.mit.edu/index.htm>.
- 371.
Bloemsaat and Kleve, above n 331, 245.
- 372.
Science CC <http://sciencecommons.org/>.
- 373.
Science CC <http://sciencecommons.org/projects/licensing/>.
- 374.
Health Commons <http://www.healthcommons.net/>.
- 375.
Science CC <http://sciencecommons.org/projects/data/>
- 376.
Wikipedia, Science Commons <http://en.wikipedia.org/wiki/Science_Commons>.
- 377.
Hietanen, above n 340, 53. See also Dilanchian, above n 331.
- 378.
See, for example, the Queensland Government Information Licensing Framework (GILF) project in Australia. The GILF project noted:
[O]wing to Creative Commons’ status as an international movement, and its recognition as a standard for flexible copyright licensing, the government can gain significant leverage from adopting Creative Commons. No point in needlessly re-inventing the wheel.
See Creative Commons, Case Studies <http://wiki.creativecommons.org/Case_Studies/Government_Information_Licensing_Framework>.
- 379.
See the New Zealand Government Open Access and Licensing framework (NZGOAL), which was approved by NZ Cabinet on 5 July 2010 as a government guidance for state services that are releasing copyrighted work for the use by the public in New Zealand. NZ Government, New Zealand Government Open Access and Licensing (NZGOAL) Framework <http://www.e.govt.nz/policy/nzgoal>.
- 380.
See also Anne Fitzgerald (ed), Open Access Polices, Practices and Licensing: a Review of the Literature in Australia and Selected Jurisdictions, European Public Sector Information Platform Topic Report No. 13—State of Play: PSI Reuse in Australia (2010) <http://eprints.qut.edu.au/33206/>.
- 381.
Hietanen, above n 340, 175, 215.
- 382.
Bjorn Hartmann, ‘Netlabels and The Adoption of Creative Commons in the Online Electronic Music Community’ in Daniele Bourcier, Pompeu Casanovas and Melaine Dulong, Intelligent Multimedia-Managing Creative Works in a digital World (Romilat, 2004), 149-153.
- 383.
Hietanen, above 340, 59.
- 384.
Garlick, above n 339.
- 385.
Hietanen, above 340, 73
- 386.
Garlick, above n 339.
- 387.
Ibid.
- 388.
Hietanen, above n 340, 199.
- 389.
Revver <http://revver.com/>.
- 390.
Dilanchian, above n 331.
- 391.
Trent Renzor <http://www.nin.com/>.
- 392.
Dusollier, above n 331, 281.
- 393.
Dilanchian, above n 331.
- 394.
On 26 April 2010, CC submitted the following statement to WIPO Committee on Development and Intellectual Property (CDIP 5) in Geneva:
We also strongly believe that Creative Commons offers developing countries opportunities to legitimately access scientific and educational materials released under a Creative Commons licence by researchers and public institutions in the developed world, something that is already taking place. We are aware that this does not solve digital divide access issues, but we believe that making the works available under permissive licences is a step in the right direction.
Andres, CC Statement at WIPO CDIP (26 April 2010) Tecnoliama <http://www.technollama.co.uk/creative-commons-statement-at-wipo-cdip>.
- 395.
Timothy Vollmer, New federal education fund makes available $2 billion to create OER resources in community Colleges, (20 January 2011) Creative Commons <https://creativecommons.org/weblog/entry/26100>.
- 396.
PLoS <http://www.plos.org/journals/>.
- 397.
PubMed Central (PMC) <http://www.ncbi.nlm.nih.gov/pmc/>; Europe PubMed Central PubMed Central (EUROPEPMC) <http://europepmc.org/>.
- 398.
Polar Information Commons <http://www.polarcommons.org/>.
- 399.
World Bank <www.worldbank.org>. See also World Bank, What the World Bank's Open Access Policy Means for Development (21 May 2012) < http://live.worldbank.org/bank-open-access-policy-development-liveblog >; Timothy Vollmer, World Bank Live Event Report: Open Access Policy and Development (24 May 2012) Creative Commons <http://creativecommons.org/weblog/entry/32839>.
- 400.
Chris Armstrong et al., ACA2K Comparative Review of Research Findings (August 2010) ACA2K <http://idl-bnc.idrc.ca/dspace/bitstream/10625/48978/1/IDL-48978.pdf>.
- 401.
Fitzgerald (ed), above n 212, vii.
- 402.
Ibid.
- 403.
Ibid 72.
- 404.
Creative Commons <http://creativecommons.org>.
- 405.
See AL Jazeera English <http://english.aljazeera.net/>, see also Brian Fitzgerald and Rami Olwan, ‘Copyright in the UAE in the Digital Age’ (2010) 32 (11) European Intellectual Property Review (EIPR) 565, 566.
- 406.
See Rami Olwan, Report Digitally Open: Innovation and Open Access Forum (23 Oct 2010) <http://www.olwan.org>.
- 407.
Brian, Creative Commons Arab World Meeting Starts Tomorrow in Tunis (28 June 2011) Creative Commons Qatar < http://www.creativecommons.qa/tunis >.
- 408.
CC Aljazeera <http://cc.aljazeera.net/>.
- 409.
Al Jazeera, Al Jazeera Announces Launch of Free Footage under Creative Commons License (13 January 2009) < http://cc.aljazeera.net/content/launch-press-release >; Noam Cohen, ‘Al Jazeera Provides an Inside Look at Gaza Conflict’ New York Times (online), 1 January 2009 <http://www.nytimes.com/2009/01/11/technology/11iht-jazeera.4.19256575.html>; Creative Commos, Al Jazeera Launches Creative Commons Repository <http://creativecommons.org/weblog/entry/12049>.
- 410.
Handawi <http://www.hindawi.com/>.
- 411.
Ibid.
- 412.
Samandal <http://samandal.org/eng-trans.html>.
- 413.
CC, Samandal: Publishing Comics Online in Three Languages under CC Licenses <http://wiki.creativecommons.org/Grants/Samandal_:_Publishing_Comics_Online_in_Three_Languages_Under_CC_Licenses>.
- 414.
- 415.
Ibid.
- 416.
NeemaZarif <http://naeemazarif.com/>.
- 417.
Ibid.
- 418.
Mayazankoul <http://mayazankoul.com/about-2/>.
- 419.
Copyright Law, above n 170, art 8. See also art 5.
- 420.
For example, Section 4(d) of the Attribution-NonCommercial-ShareAlike 3.0 Unported licence provides as follows:
d) If You Distribute, or Publicly Perform the Work or any Adaptations or Collections, You must, unless a request has been made pursuant to Section 4(a), keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) if supplied, and/or if the Original Author and/or Licensor designate another party or parties (e.g., a sponsor institute, publishing entity, journal) for attribution (“Attribution Parties”) in Licensor's copyright notice, terms of service or by other reasonable means, the name of such party or parties; (ii) the title of the Work if supplied; (iii) to the extent reasonably practicable, the URI, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and, (iv) consistent with Section 3(b), in the case of an Adaptation, a credit identifying the use of the Work in the Adaptation (e.g., “French translation of the Work by Original Author,” or “Screenplay based on original Work by Original Author”). The credit required by this Section 4(d) may be implemented in any reasonable manner; provided, however, that in the case of a Adaptation or Collection, at a minimum such credit will appear, if a credit for all contributing authors of the Adaptation or Collection appears, then as part of these credits and in a manner at least as prominent as the credits for the other contributing authors. For the avoidance of doubt, You may only use the credit required by this Section for the purpose of attribution in the manner set out above and, by exercising Your rights under this License, You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties.
Creative Commons, Attribution-NonCommercial-ShareAlike 3.0 Unported licence <http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode>.
This applies to every Creative Commons work. Whenever a work is copied or redistributed under a Creative Commons licence, the original creator (and any other nominated parties) must be credited and the source linked to. See CC Australia, About the Licences <http://creativecommons.org.au/>.
- 421.
Maracke, above n 337, 7.
- 422.
Ibid 9.
- 423.
Ibid 8.
- 424.
See Creative Commons, above n 420.
- 425.
It should be noted that not every remix and modification of content will amount to a breach of the right of integrity.
- 426.
See also Goldstein and Hugenholtz, above n 286; Appelbaum, above n 284; Treece, above n 285; Sterling, above n 283.
- 427.
Curry v. Audax, Rechtbank Amsterdam, No. 334492/ KG 06-176 SR, 3/9/06 (Cury v Audax) <http://mirrors.creativecommons.org/judgements/Curry-Audax-English.pdf>.
- 428.
Groklaw, Creative Commons License Upheld by Dutch Court <http://www.groklaw.net/article.php?story=20060316052623594>; Mia Garlick, Creative Commons Upheld in Dutch Court (16 March 2006) Creative Commons <http://creativecommons.org/press-releases/entry/5822>; Hietanen, above n 340, 81; Bloemsaat and Kleve, above n 331, 237-249.
- 429.
Susan Chang vs. Virgin Mobile USA, Virgin Mobile Australia and CC (The Complaint) <http://lessig.org/blog/complaint.pdf>.
- 430.
Andrew Srlowski, Creative Commons Sued for Deception (24 September 2007) <http://andreworlowski.com/tag/creative-commons/>.
- 431.
Hietanen, above n 340, 62; Lawrence Lessig, On the Texas Suit against Virgin and Creative Commons (2007) <http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html>; Mike Linksvayer, Lawsuit against Virgin Mobile and Creative Commons –FAQ (27 September 2007) Creative Commons <http://creativecommons.org/weblog/entry/7680>.
- 432.
Lawrence Lessig, From the Why-a-GC-from-Cravath-is-Great Department: The Lawsuit is Over (2007) <http://lessig.org/blog/2007/11/from_the_whyagcfromcravathisgr.html>.
- 433.
The Court noted that:
The document presented by the defendant-appellant as license of free musical use is nothing but a mere informatory leaflet about the contents of the license and is lacking any signature; therefore it cannot be asserted any value.
See Posse, above n 270, 815.
- 434.
Mia Garlick, Spanish Court Recognizes CC-Music (23 March 2003) Creative Commons <http://creativecommons.org/weblog/entry/5830>; Posse, above n 270, 824.
- 435.
On February 17th, 2006, the judge in the Lower Court number six of Badajoz, Extremadura, Spain said:
The author possesses some moral and economic rights on his creation. And the owner of these rights, he can manage them as he considers appropriate, being able to yield the free use, or hand it over partially. “Creative Commons” licenses are different classes of authorizations that the holder of his work gives for a more or less free or no cost use of it. They exist as different classes of licenses of this type they allow third parties to be able to use music freely and without cost with greater or minor extension; and in some of these licenses, specific uses require the payment of royalties. The defendant proves that he makes use of music that is handled by their authors through these Creative Commons licenses.
Garlick, above n 434. See also, Hietanen, above n 340. 112; Thomas Margnoi, English translation of Spanish CC decision (2007) Creative Commons <http://mirrors.creativecommons.org/wp-content/uploads/2007/02/luis-cc-spanish-decision-final.pdf>; Posse, above n 270, 815.
- 436.
Brian Fitzgerald, Open Content Licensing (OCL) for Open Educational Resources, Paper commissioned by the OECD’s Centre for Educational Research and Innovation (CERI) for the project on Open Educational Resources (2007) 10 <http://www.oecd.org/dataoecd/33/10/38645489.pdf>.
- 437.
Bloemsaat and Kleve, above n 331, 248.
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Olwan, R.M. (2012). Voluntary Mechanisms, Copyright and Development. In: Intellectual Property and Development. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27907-2_6
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