Navigating the Copyright-Copyleft Continuum in the Digital Age

Introduction 

In the ever-evolving realm of Intellectual Property Rights, the concepts of copyright, copyleft and open source have developed as significant paradigms shaping the landscape of creativity and technological innovation. 

The Indian Copyright Act, 1957, along with the Copyright Rules, 2003 provides an economic right to the creator or author to reproduce the work extending to issuing copies, performing, or communicating to the public or to make into a cinematograph film or a sound recording or translating the work. The protection under the aforementioned Act, is 60 years in addition to the author’s lifespan. Protection of one’s copyright implies that an artistic or literary work can only be copied or sold once the author has permitted the same. Since Copyright protection is a natural right in India, there is as such no mandatory requirement for registration of work to avail the protection under the Act. It is in fact an automatic right, which emerges as and when infringement takes place, and therefore, it is a sui generis right.

In contrast, Copyleft can be described as a specific kind of a license that allows free use of a copyrighted material but under certain terms and conditions, granted by the owner of the copyright himself. The term Copyleft was coined by Don Hopkins in the 1980’s and was further popularized by Richard Stallman. While the name may suggest otherwise, Copyleft isn't an antithesis to copyright, it is in fact a subset and the goal of the Copyleft licenses is to restore freedom to users. The grant of the Copyleft license is frequently used for digital artistic work, software, etc., and the Copyleft license in India is also valid for the same time period as enshrined in the Indian Copyright Act. Thus, the primary aim of Copyleft is to enable the users to have the right to freely modify, copy, use and disseminate works in any manner. However, this absolute freedom has one clause that all derivative works must offer the same freedom to its users. 

Let’s consider an example of wherein an engineer releases a software with its coding accessible to all. Any user can within its rights access the coding of the software and modify it however the user wants and distribute the modified software to whoever it wants. Once the said software is modified by the user, the same user would have to permit anyone else to modify and distribute its work however they want. In today’s time where protecting novel work is imperative, this different school of thought encouraging the concept of Copyleft also has a stance that some works need to be readily available to all free of cost. 

How Copyleft is applicable to Computer Software

The source code of a computer software may require further modification which is why Copyleft licenses have been promulgated so that the source code be made freely available to all. The source code is the basic coding written by humans and there is no requirement to provide the ready-to-run version, as the source code is relatively easy to convert into runnable programs. The first Copyleft license and most commonly used license for the copylefted free software is issued under the General Public License. The free software means that the source codes for the same are accessible to anyone for the purpose of copying, extending, modifying, etc. While the Open-source software makes its source code available in the public domain, it is not necessary for the developer to release the entire product code to create a commercial product. In Open-source software, the modifications and advancements made are not required to be followed by a similar license. However, a Copyleft license agreement is to be drawn up in case any modifications are made to a Copylefted software so that the same cannot be copyrighted enabling the exclusive rights to one individual. 

In today’s time, the code used in most of the software is open source software. Since the open source software is freely available to everyone there are limitations imposed by the law and compliance must be made with the same. 

The year 2017 marked the victory for the open source community. In the case of Artifex Software vs. Hancom the United States District Court ruled in favour of the Plaintiff, the developer of an open source PDF interpreter, against the South Korean developer of productivity apps. The Court held that the “General Public Licenses (GPLs) can be treated as legal contracts and developers can sue when those contracts are breached.” The decision of this case provides strong legal support to the enforceability of the open source licenses. 

Validity of the Copyleft Clause in India 

Currently there isn’t any law involving Copyleft license or Open-Source Software and the same are not specifically recognized under the Information Technology Act, 2002 or the Indian Patent Act, 1970 or the Copyright Act, 1957. However, the Copyleft license is validated by the existing laws of Copyright and Contract. 

In the case of Tata Consultancy Services v. State of Andhra Pradesh, the Supreme Court held that “software is an intellectual property” and it will be covered under Section 2(o) of the Indian Copyright Act, 1957, under the term literary works which shall include computer programs. Further, Section 14 of the Copyright Act, allows the copyright holder of a computer program “to issue copies of the work to the public not being copies already in circulation”. The reading of the section is ambiguous with respect to whether the distribution should be free or not. Thus, this ambiguity enables the developers under the Copyleft agreement to further license and re-distribute their software for free. Even though the Indian Copyright Act does not categorically recognize the open-source software, it does lay down protection for the owner of the copyrighted work to work out and enact a copyleft agreement to license its work within the Indian legal framework. 

Thus, the application of the concept of Copyleft to computer software is monitored by the Copyright Law and the general licenses under the Indian Contract Act. So, what is the exact difference between the concept Copyleft and the Copyright Law? 

Difference between Copyright and Copyleft 

1. Purpose

Copyright Law provides protection to authors from unauthorized use, copying or selling of their work. Whereas, Copyleft enables the free flow of copyrighted work to be modified and distributed back to the community that is bound by the general license agreement. 

2. Rights of the Author/Creator 

The owner of the Copyrighted works has the exclusive right to copy, reproduce, publish and translate the same. However, the Copyleft license holder has the absolute freedom to use the work, copy, study and share the same work with others and even modify the work, and thereafter also has the option to freely distribute the modified derivative forms of the said work. 

3. Nature of the Right 

The law of Copyright is prohibitive in nature wherein no third-party can exercise the rights that are reserved only for the author/creator. Copyleft, on the other hand, is a relatively liberal license enabling the third parties with reasonable restrictions, to modify and distribute work. 

4. Consent of the Author/ Creator 

In the case of Copyright, consent is required from the author of the artistic work to make any modifications. In contrast, there is an implied consent in the Copyleft license to make any amendments.  

5. Users 

Copyright facilities in safeguarding the interests of the society via copyright control so the original author can reap the benefits of his hard-earned work. Whereas Copyleft aims to distribute the artistic work and not limit it to one individual or group of people. 

Thus, the aforementioned difference between the two highlights how the newly emerging Copyleft method can actually lead to free flow of ideas and not restrict them to an individual or a group of individuals. 

Key differences between the Open Source Software and Proprietary Licenses: 

Open Source Software Licensing are either copyleft or permissive licenses. Copyleft licenses inherit the licensing terms of the already existing Open Source Software project on which the same are based and permissive licenses provide more flexibility for modification, distribution and reuse. 

Some examples of the Copyleft Licenses include: 

1. General Public License: It is the original copyleft license that requires the creators to distribute the source code of their projects when distributing any software built on such licensed OSS. 

2. Variants of the General Public License: The Affero General Public License limits the distribution loophole in the original General Public License and makes its restrictions apply to software made available via a network as through general distribution. 

The other variant i.e., Lesser General Public License is very similar to the original General Public License and even Affero General Public License, but relaxes the requirements for distribution for smaller projects accessed via licensed projects. 

3. Mozilla Public license: This License is the least restrictive amongst the above-mentioned copyleft licenses as it enables the developers to modify and use any code from the said licensed projects as long as those developers maintain the modified files separate and distribute them along their software project. 

Some examples of Permissive Licenses: 

1. Apache License: This license requires copyright and license notices but otherwise permits for different licensing terms in derivative projects and does not require creators to provide the source code of their work. 

2. MIT License: This License simply requires that the developers must include the original license and copyright notice in any derivative products. 

On the other hand, Proprietary Software Licenses are the opposite of the Open Source Software and usually restrict modification, inspection and distribution. Several Proprietary Licenses like the End-User License Agreements, Terms of Service, Terms of Use, Terms and Conditions, etc., are standard for commercial apps. The creators using such licenses mostly don’t distribute the source code of their works and any attempts to distribute the commercial proprietary software without a reselling or distribution license is usually illegal. 

The difference between the Open Source Software and the Proprietary Licenses have been tabulated below:

Conclusion

Copyleft has evolved into quite a controversial issue where on one hand it is a practical concept for the promotion of the development of computer software, whereas on the other, the concept disrupts intellectual property rights. In today’s world, Copyleft has a contrasting effect that can be viewed as a bridging mechanism that facilitates the growth of the social knowledge and common interests of the society. When Copyright protects an author’s artistic work and enables the author to prohibit the work from being distributed, the liberal mechanism, Copyleft advocates the work should be free for all to use.