how much right do I have on my project, if there are patches by others?

Fabian Bastin bastin at
Sat Jul 7 14:27:39 UTC 2007

Rick Moen a écrit :
> Quoting John Cowan (cowan at
>> 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 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?

Fabian Bastin

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