Open Source Software: A Legal Explainer

The licencing of Open Source Software (OSS) is very complex, closely tied to a business’s strategic aims and developments and may have very serious legal, especially IP (copyright) repercussions.

What is OSS?

In essence OSS refers to any software that is released under numerous different open source licences that makes the source code of the software available to everyone. A very important difference between OSS and commercial software is that source code is freely available for OSS as opposed to strictly granted rights in terms of the usual licence agreements to modify and improve code in respect of commercial software.

OSS v Copyright

The above is contradictory to the automatic legal protection an author of software enjoys in respect of his creative work (software, including code) by means of copyright in terms of the Copyrights Act 98 of 1978 which stipulates that the author may decide what may be done to his work and by whom.

In terms of section 2 of the Copyright Act computer programs are eligible for copyright and does section 11B of the Copyright Act stipulates that the:

Copyright in a computer program vests the exclusive right to do or authorise the doing of any of the following acts in the Republic:

  • reproducing the computer program in any manner or form;
  • publishing the computer program in public;
  • performing the computer program in public;
  • broadcasting the computer program,;
  • causing the computer program to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the computer program, and is operated by the original broadcaster;
  • making an adaption of the computer program;
  • doing, in relation to an adaption of the computer program, any of the acts specified in relation to the computer program in paragraphs (a) to (e) inclusive;
  • letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program.

With other words someone who wishes to do any of the acts stated in (a) to (h) above will need explicit consent and a licence from the author or proprietor of such software (computer program) to do so – hence the regularly granted licenses issued to users of software.

OSS clearly contradicts the above copyright protection to the extent that its main aim is to provide the software that is made available as OSS to everyone for free.

OSS Licences

OSS can be licences under a multitude of different freely available licences, each carrying its own requirements for using and modifying the source code. The Open Source Initiative (OSI) maintains a list of these open source licences at and includes the following widely used and “special purpose” licenses:

  • Apache License, 2.0
  • New and Simplified BSD licenses
  • GNU General Public License (GPL)
  • MIT license
  • Mozilla Public License 1.1 (MPL)
  • Common Development and Distribution License
  • Common Public License 1.0
  • Eclipse Public License

To be approved by the OSI open source licenses must adhere to the following 10 open source definitions:

2.1       Free Redistribution

The license shall not restrict any part from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.

2.2      Source Code

The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicised means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a pre-processor or translator are not allowed.

2.3      Derived Works

The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.

2.4      Integrity of the Author’s Source Code

The license may restrict source-code from being distributed in modified form only if the license allows the distribution of “patch files” with the source code for the purpose of modifying the program at build time. The License must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.

2.5      No Discrimination Against Persons or Groups

           The license must not discriminate against any person or group of persons.

2.6      No Discrimination Against Fields of endeavour

The license must not restrict anyone from making use of the program in a specified field of endeavour. For example, it may not be restrict the program from being used in a business, or from being used for genetic research.

2.7      Distribution of License

The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.

2.8      License Must not be Specific to a Product

The rights attached to a program must not depend on the program’s being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program’s license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.

2.9      License Must not Restrict other Software

The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.

2.10    License Must be Technology-Neutral

No provision of the license may be predicated on any individual technology or style of interface.

Copy-left v Permissive Licences

A major difference between OSS licenses is whether they are permissive or copy-left.

Where copyrights allows the copyright owner to either withhold permission for his work to be used or dictate the conditions under which he is willing to consent to or allow such use, an OSS Copy-Left License requires that permission for the wide use of copyrighted software be granted. The copyright owner is thus forced to make his source code available, to control actions of others that may receive his software and factually to part with his copyright protection and valuable IP. Copy-Left License thus makes sure that all modified versions of the software remain free and open in the same way as the original software was. The GPL (Gnu Public License) is considered to be the most popular Copy-Left License.

Permissive Licenses, on the other hand, allows the copyright owner some form of control to the extent that subsequent developers can use the permissively licenced source code of the copyright owner in closed source proprietary software. The Lesser–General Public License (LGPL) is like the GPL, but allows works licensed under it to be linked to closed-sourced proprietary software, which would not be allowed under the GPL.

By Marietjie Botes