Open source software (“OSS”) may be used by the public free of charge, however, its use is not free of risk. Companies who incorporate OSS in their software programs should be aware that OSS is protected by copyright law in Canada as a literary work and is not the same as public domain software that is not protected by copyright. Also, OSS is subject to a open source license and violating the terms of the open source license may result in liability for copyright infringement.

The United States Court of Appeals for the Federal Circuit recently confirmed that enforceable copyright exists in OSS code (Robert Jacobsen v. Matthew Katzer, U.S.C.A., FC No. 2008-1001 (August 13, 2008)). Robert Jacobsen developed a program for the model train industry and provided a free public download of the program on his website under a public license called the Artistic License. A competitor used portions of the software program. The court held that Jacobson retained an enforceable copyright in the OSS code to control future distributions and modifications, if the use exceeds the license terms.

Although this is a U.S. court ruling, the same basic reasoning would likely apply in a Canadian dispute. If a Canadian organization has used OSS in their software development, they should review the terms of the license in order to avoid violating a license term and possibly risk a copyright infringement suit.

A common misconception is that all OSS software is licensed under the same standard terms. In fact, there are currently over 70 variations of OSS licenses certified by the Open Source Initiative (OSI). Some OSS licenses contain a “copyleft” provision, which provide that one can use, modify or incorporate OSS as long as, among other requirements, any resulting software is distributed free of charge. The resulting software product may lose its proprietary nature, and distribution for a fee would breach the copyleft term, potentially resulting in a breach of contract and/or a copyright infringement claim. Common open source licenses that contain copyleft provisions include GPL (one of the most widely used free used licenses), Mozilla and the Creative Commons ShareAlike 2.5 Canada (see http://www.opensource.org/licenses).

Also, many OSS licenses are drafted with U.S. copyright law in mind, which differs from Canadian copyright law in some ways. For example, in Canada, the author is granted “moral rights” in the software. These moral rights include the author’s right to be attributed to their work and to the integrity of their work. Moral rights cannot be assigned but only waived. An OSS license based on U.S. law may not include a waiver of the author’s moral rights. A breach of the author’s moral rights could also lead to a claim. If the OSS license is silent on moral rights, a waiver from the author may need to be obtained. However, the collaborative and distributed nature of developing OSS makes identifying the author(s) difficult.

These risks are not merely academic. Open souce software organizations are increasingly commencing litigation alleging copyright infringement against those who do not comply with open source licence terms. Companies who use OSS code and fail to take proper precautions could quickly find themselves on the wrong end of a copyright infringement lawsuit.