A guide to selecting FOSS licences for programmers and open culture enthusiasts

Presented by James Scheibner
Friday 1:20 p.m.–2:05 p.m.
Target audience: Business


This paper provides some insight for programmers on way that copyright and patent law in Australia affects free and open source software (FOSS) licences. Without a shadow of doubt the greatest area of legal debate amongst FOSS programmers surrounds the choice of FOSS licence. Many FOSS and Creative Commons style licences are designed to provide developers with a standardised licence which sets the terms for the release and public use of work. Crucially, many of these licences are designed so that developers do not have to seek legal advice for the release of their source code.

However, the complexity and uncertainty regarding the scope of copyright and patents with respect to software can be discouraging for many FOSS programmers. This confusion and uncertainty may lead to FOSS programmers choosing conflicting licences or choosing to not licence their code at all, which can lead to uncertainty as to who actually owns the software. These issues are important irrespective of whether the software is open source or proprietary, or developed as part of commercial work or on a gratis basis.

Nevertheless, a number of recent decisions in the United States have clarified both the scope of copyright and patent protection for software, fair use under copyright law and the conditions that are enforceable under both proprietary and open source software licences. Given the increasingly internationally standardised nature of patent and copyright law, these decisions are likely to have a considerable impact on the way that law affects software in Australia.

Accordingly, this paper is intended to provide a guide for FOSS programmers on how recent case law has impacted on open source licence enforceability, and the implications of releasing under certain FOSS licences. In particular, this paper provides advice on how open source developers should release their software depending on how they wish their software to be used or distributed. Specifically, this paper will attempt to provide some examples on where particular FOSS licences may or may not be appropriate depending on both the type of software and work licensed and the intent of the developer. Finally, this paper will also provide some tips on steps that FOSS developers or open culture enthusiasts can take to maximise downstream use or sharing of their work.

Presented by

James Scheibner

James is a former programmer and postgraduate student in law at the University of Tasmania. At present he is currently studying the intersection of intellectual property and regulatory regimes for bioinformatics and computational biology. Throughout his work as a programmer, James was perplexed as to how copyrights and patents could (in many cases) have such a prohibitive impact on FOSS development. At the same time, James became deeply interested in the FOSS movement and how its application inside and outside of software development could have lasting social implications. Accordingly, James is studying how open source licences and development practices can be applied within computational biology to help support a genomic research commons. This will be supported by law reform to adapt traditional intellectual property regimes for new and emerging advances in computer science. Prior to starting his postgraduate studies, James completed undergraduate degrees in computer science and law at the University of Tasmania. In his spare time, James contributes to the org.geppetto OpenWorm project, a web based simulation and visualisation project that models the neuroanatomy of the C Elegans nematode worm.

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