how much right do I have on my project, if there are patches by others?
bastin at iro.umontreal.ca
Sat Jul 7 14:27:39 UTC 2007
Rick Moen a écrit :
> Quoting John Cowan (cowan at ccil.org):
>> It is, however, how patches are accepted and processed: patch authors,
>> if the patch is substantial and is accepted into the original work,
>> do meet the definition of joint authorship.
> I doubt that. I personally find Catherine and Eric Raymond's analysis
> at http://www.catb.org/~esr/Licensing-HOWTO.html#id2790762 persuasive.
> (Note that this is within Catherine's legal specialty.)
Just a quick remark. While I find this essay interesting, I fell
uncomfortable on one point: it is oriented towards U.S. legislation.
Most open-source project involves involve contributors from various
countries, so is this analysis enforcable in this international context?
The notion of joint, collaborative, derivative,... work can vary from
country to country, and depending on where the case is disputed, the
conclusion could be different in my opinion. For instance, the notion of
collective work exists in France, but not in Belgium.
An analysis (in French) for the Belgian case is available here:
Briefly, if I correctly remember the conclusions in this document, the
stated point for Belgium was close to the notion of collective work in
the sense that each contributor keeps the copyright (except in the case
of explicit transfer) on his own code, but as soon as the contribution
is sufficient enough to create an original work (the notion of
"original" being sometimes difficult to assert, but in the previously
cited essay we can say that 20 lines of code were not sufficient), they
become "co-authors" and therefore a change of license for the whole work
require their explicit agreement (even if they have not explicitely
asked a status recognition). The common point in my view with the HOWTO
is that legally speaking, we should make a distinction between
"patchers" and "contributors" and their rights depend on the individual
country legislations. But in most legislations, patchers (that is minor
contributors, so the new work cannot be considered as original) seem to
have very limited rights, whatever the open-source community think about
it. This does not exclude signed agreements like in the Apache, since it
always help to avoid future interpretation problems. BTW, this is not in
condradiction with the Apache view as long as we admit that the required
agreement concerned contributors, not patchers, and in line with the
comment of John in the sense that the patch must be substantial to be
considered as a contribution leading to an original work.
This analysis also leads to the conclusion that with respect to the
Belgian legislation, the work is neither joint or collective work. It is
a joint work in the sense that there are several identifiable
co-authors, but this assertation is not applicable: "Therefore, any
co-author of a joint work is free to distribute the work on any terms he
chooses — including changing the license, and including taking a copy
closed source!" And is a collective work in the sense that "Individual
portions of such a work may (and often do) have copyrights, and there
may also be a collective-work copyright on the work as a whole." but not
in the sense that "the holder of the collective-work copyright is
legally privileged to set the distribution terms for the package as a
whole (in the statute, this expressed negatively as a statement that the
collective-work copyright holder acquires /only/ those rights)." This is
close to the commonly community practice.
Once again, this anlaysis is Belgian-oriented, to my knowledge (I am not
a lawyer, but I have lawyer friends) but Belgium benefits for an
important position in Europe since if the European legislation is silent
on one point, the Belgian legislation prevails. In case of a dispute,
which legislation should prevails, the US or the European one if there
are actors on both sides of the ocean?
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