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Vol 21 No 11 Nov/Dec 2016

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Open Source Software and Intellectual Property Rights


ISBN13: 9789041152282
Published: June 2014
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £148.00



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Debate is raging as regards intellectual property and software. Neither copyright law nor patent law seem to satisfy the requirements of software protection.

This legal uncertainty has led to the laws becoming subject to exploitation by corporate and other entities for vested agendas. The resentment towards the inadequacies of laws and practices and their subsequent exploitation is highlighted by the emergence of alternative development models, most notably by the open source software model.

This book proposes a sui generis model for software, following the pattern of recently developed technological distinctions in such fields as database protection, integrated computer circuits, plant breeders’ rights, and the recognition given to collective rights like collective trademark, geographical indication, and traditional knowledge. The author approaches his proposal of a model software law via a thorough analysis of the matter, involving such issues and topics as the following:-

  • contract law versus licensing law;
  • existing public licenses and public distribution systems;
  • scope of the license – geographic regions and markets, fields of use and products, sublicensing, royalties;
  • exclusions, term, revocation, and termination of license;
  • copyleft and infectious terms;
  • distribution – system libraries, kernel modules, source code editors, compilers;
  • patents and interoperability;
  • ;applicability of the principle of exhaustion, the unclean hands defence, and the misuse doctrine;
  • implied license;
  • internationalization challenges; and
  • status and standing of subsidiaries, controlled companies, and affiliates.

The author’s analysis draws on case law, legal commentaries, books, journal articles, trade journals, and magazines, as well as on informal interviews and discussions with academicians and practitioners. A full model software law is presented in the last chapter. The book puts forth a major initiative to correct the balance between public and private rights to computer software.

Given the pervasiveness and economic importance of the software industry, the sui generis scheme presented here will be of great interest to all involved stakeholders – software developers, corporate entities, legal practitioners, academicians, government institutions and legislative bodies, and academics in the field.

Subjects:
Information Technology Law, Intellectual Property Law
Contents:
1. Introduction.
2. Genesis of the Institution.
3. The Legal Governance Structure.
4. The Licensing Regime.
5. Licensing and Rights Management.
6. Improvements Management: Licensing and Copyright Law.
7. Improvements Management: Patent Law.
8. The Case for Interoperability.
9. Challenges: Issues in Law.
10. Challenges: Issues in Licensing.
11. Commercialization.
12. Software Protection: The Sui Generis Option.
13. Software Protection: Revisiting the Sui Generis Option.
Appendices:
1. GNU General Public License, v2.
2. GNU General Public License, v3.
3. The BSD License.
4. Mozilla Public License, v1.1.
5.The Open Software License 3.0.
Index.