- Paradigm shift in European intellectual property law? From Microsoft to Linux
- Lex Electronica
- Volume | Issue number
- 10 | 3
- Number of pages
- Document type
- Faculty of Law (FdR)
The author Lucie Guibault analyzes the phenomenon of "open source" software and its impact on copyright and patent law. These software are freely distributed on the Internet and their modification and redistribution are encouraged. However, selling or commercializing such software is highly discouraged or even formally prohibited. These specific characteristics characterize "open source" software from traditional property software, which are based on the principle that the creator of a program posses every property rights associated to it, is the only one permitted to sell or modify it and has the faculty of alienating these rights. Open source software are founded upon a cooperative ideology, which promotes the free diffusion of ideas and knowledge, thus promoting the creation of better software.
The author presents the overall characteristics of the "General Public License", the "Berkeley Software License" and the "Mozilla Public License", which are the three main ‘open source’ software licenses to date. She holds that the normative regime surrounding these licenses is the source of a paradigm shift within European and Dutch copyright and patent law.
The first section of the article defines the copyright regimes of the three "open source" licenses. The author holds that such regimes have been established on the fundamental notion that the distinction between users and creators of ‘open source’ software has essentially vanished. This reality is reflected in the normative regimes of the licenses by providing users with certain rights and obligations concerning the use, reproduction, modification and free distribution of such software. The author explains how these regimes have been integrated within European and Dutch property, commercial, competition, communication and contract law. Guibault holds that the European and Dutch legislation have successfully adapted to the new challenges posed by copyright rules of "open source" software.
The second section focuses on the problematic presented by "open source" software in the context of European and Dutch patent law. Most "open source" software users and creators oppose the traditional patent system, alleging that it is inhibiting innovation and limiting the possibilities of technical development. The author describes the alternative patent regimes proposed by the ‘open source’ licenses and defines their legal framework within European and Dutch legislation. She holds that these laws have yet to adequately adapt to the needs of "open source" software users.
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