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“There’s nothing new under the sun” – a fact more true than ever in the information age. Specifically, open source software has propelled the world into an era where developers can spend their time providing solutions based on the work of others instead of reinventing the wheel, due to lower entry costs, extent of collaboration and the upstream benefits it provides.
It is debatable whether open source code is truly copyright free and whether it can be marketed. Before answering this question, it is important to have a clear understanding of what is meant by “open-source”.
Essentially, open source software is software subject to a license agreement that allows the software to be freely accessed, used, modified, and shared in modified or unmodified form. The extent to which software is open source is a matter entirely governed by the terms and conditions of the license agreement.
There are two main types of open source software, namely “copyleft” and “permissive” open source software.
Copyleft software refers to software subject to terms and conditions that permit derivative works and/or forking, however, such works shall be subject to the same license applicable to the original works. Essentially, copyleft licenses ensure that the software remains “open” perpetually.
Not all open source software is copyleft but can be “permissive” software, which allows the use of open source software or parts thereof in software with other types of licenses, including, importantly, proprietary licenses. Indeed, permissive licenses guarantee the freedom to use, modify and redistribute the original work, however, they provide for the exclusive license of any derivative work.
In practice, this would mean that if a software developer uses and/or incorporates software licensed under a permissive license – often referred to as “non-copyleft” – in the creation of a derivative work “Y” and imposes restrictions on the use and /or the redistribution thereof, by means of a proprietary software license, and markets Y, it will benefit from the protection of copyright. However, if a developer uses and/or incorporates copyleft-licensed open source software into Y’s production, that developer will not be entitled to copyright protection and cannot seek to institute copyright infringement. author and, therefore, will be without recourse if anyone else copies and/or incorporates Y elsewhere.
A common misconception is that open source software, especially copyleft-licensed software, cannot be commercialized, which it is not. Open source software can be marketed even if it is available everywhere and cannot benefit from copyright protection.
Yes, you can, in fact, sell and/or distribute free software and receive money for doing so despite the fact that you did not write the original software. It should be noted that open source software does not waive any other intellectual property rights that may be vested in it. The age of access to information has made it imperative to register various forms of intellectual property rights, for example: – a registered aesthetic design to ensure exclusive use of your user interface, and a trademark for your trademarks can provide protection where copyright protection cannot longer.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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