[License-review] International Licenses: Québec Free and Open-Source Licence (LiLiQ)

Simon.Johnson-Begin at cspq.gouv.qc.ca Simon.Johnson-Begin at cspq.gouv.qc.ca
Mon Sep 21 02:37:53 UTC 2015

Thank you everyone for your comments, it is much appreciated,

>I understand the desire for all your licenses and contracts to be in
>French. But surely the Québec government can't assume that all open
>source software it acquires or redistributes will be under a French
>language license. Haven't you dealt with other languages already?
>Or don't you use GPL, Mozilla, Apache and Eclipse software there?

As you might be aware, language is a very delicate matter in Canada, specially in Québec. The Charter of the French Language, CQLR, c. C-11 (http://canlii.ca/t/526jl), sections 15 and 21 are especially relevant in our case:

“15. The civil administration shall draw up and publish its texts and documents in the official language.

This section does not apply to relations with persons outside Québec, to publicity and communiqués carried by news media that publish in a language other than French or to correspondence between the civil administration and natural persons when the latter address it in a language other than French.

21. Contracts entered into by the civil administration, including the related sub-contracts, shall be drawn up in the official language. Such contracts and the related documents may be drawn up in another language when the civil administration enters into a contract with a party outside Québec.”

The french version of section 21 of the act seems to be a little bit more severe: “Les contrats conclus par l'Administration, y compris ceux qui s'y rattachent en sous-traitance, sont rédigés dans la langue officielle.Ces contrats et les documents qui s'y rattachent peuvent être rédigés dans une autre langue lorsque l'Administration contracte à l'extérieur du Québec.” This suggest that all contracts entered into by the civil administration must be in french unless the contract is formed outside Québec.

According to our Civil Code (http://canlii.ca/t/52g2k), section 1387: “ A contract is formed when and where acceptance is received by the offeror, regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to secondary elements.”

Even if the english interpretation is the correct one (both versions are equally authoritative) it is true that (at least, we hope!) there will be licensees from outside Québec, but it surely won't be always the case. There will be licensee from inside Québec and in that case, contracts must be in french.

Other than this statute, there are some others regulations regarding the use of french by the public administration.

To answer the question, yes, we do use softwares licensed under an english only license. As stated before, simply using FOSS softwares does not generally impose any obligations on our part. If we are to distribute it it's a bit more tricky, but if the licensor is outside Québec, it can be argued that the contract has been formed with a party outside Québec (but it won't always be the case).

In the end, for softwares written by the Government of Québec and its agencies, there is no way out of it, the licenses must be in french in order to comply with the law. There can be of course an official translation.

>This seems highly foreign to me, pun intended.  I would be surprised
>if anyone would have any standing under US copyright law in
>asserting a copyright claim on license terms.  Is that tested
>or different under Canadian copyright law?  It’s akin to a recipe
>or formula and, regardless, would seem contrary to the very nature
>and intended function of license terms.  Given that, I’m surprised
>you didn’t consider “1.5 Translate an existing license".

>Certified translation from a backing Government body would certainly
>add weight to translation credibility and limit license proliferation.
>There are 83 languages spoken by at least 10 million people ..
>imagine the mess if even half did their own LiLiQ trios.  Egads!

Well, it is our understanding that FOSS licenses are copyrighted. As Gervase Markham reminded us, some licenses explicitly grant the right to modify a license (MPL, AFL, GPL, etc.), with some restrictions. As for the GPL, it is in our understanding that the FSF won't recognize official translations. In the end, a certified translation is still another license as long as it is not recognized as one by the copyright owner (license steward).

>4.2 seems problematic for certain file types (e.g., image files,
>zip files, other binary files, certain rigidly structured ascii
>files, etc).  Could be perceived as a GPL/LGPL incompatibility.

Good point. We are very open to suggestions. Would something like this be sufficient: (2) If the software has been modified, the licensee must, if possible, mention this in every modified file.

>As I understand copyright law (IANAL, of course), and the existing FOSS
>licenses, this statement is not correct:

>"There would still be a contract between a licensor and a licensee, but
>only when a right granted by the license is exercised. In other words,
>someone who merely download and use a software under the LiLiQ is not a
>licensee and as such, you are right to say that there is no contract
>between that person and the department or agency."

>Every OSI-approved license that I've read grants explicit permission for
>use of the software, because without such a grant copyright law would
>disallow even plain 'use' (since 'use' almost invariably involves copying
>the software to some extent). That would mean that there *is* a contract in
>place if someone exercises their right to use the software, if the license
>agreement is deemed to be a contract.

First, it is true that a lot of FOSS licenses grant explicit permission to use a software. However, we think that this grant of right is not required or necessary, especially for the purpose of FOSS softwares. Granting the reproduction right implicitly grants the “right” to use a software.

Second and more importantly, We must remember that there is no such thing as the right to use in copyright law. In Canadian law, this is very clear, as decided in Harmony Consulting Ltd. v. G.A. Foss Transport Ltd., 2011 FC 340 (CanLII) <http://canlii.ca/t/fksbt>:
“[260] The Plaintiff also argued that the Defendants had breached the SLAs [Software license agreement], even though it is not seeking damages for breach of contract.  In this regard, it argued that the licensing agreements, the SLAs and weekly agreement, prohibited certain conduct such as continued use of the software, exceeding user seats, decompiling, misattribution and modification of the software.

[261] In simple terms, the Plaintiff argued that any violation of the licensing agreements constituted a violation of copyright. This argument is inherently flawed and cannot succeed as “…copyright infringement does not arise out of a breach of contract”; see Corel Corp. v. Guardian Insurance Co. of Canada (2001), 26 C.C.L.I. (3d) 39 (O.S.C.J.) at para. 22. As I have explained, copyright is violated only if the defendant has performed, or authorized, an act that only the owner can do within the confines of the Copyright Act.

[262] I note that the computer equipment located at Foss Transport was a Citrix server. This means that there was only one copy of the software on the Foss Transport computer system. As a result, even if Foss Transport’s license to use the software were terminated or expired, Foss Transport would not need to make a copy of the software to continue using it.  In my opinion, use of a software program, without more, does not constitute copyright infringement.

[263] Similarly, assuming but without deciding, that the Defendants were in violation of an excess user limitation, excess user seats is not an infringement of copyright since it does not relate to an act that only the owner of the copyright can authorize pursuant to the Copyright Act. If this term of the SLAs were found to be breached, it would only constitute a breach of contract, not a violation of copyright.”

The fact that the use of a software program does not constitue copyright infringement has been explicitly stated by the Federal court of appeal in Harmony Consulting Ltd. v. G.A. Foss Transport Ltd., 2012 FCA 226 (CanLII) <http://canlii.ca/t/fsqxj>:
“[76] I agree with the trial judge that the Act does not give the owner of the copyrights an exclusive right to use the copyrighted work. In that respect, the rights of a copyright owner differ from those granted to the owner of a patent or a trademark.”

In Canadian law, simply using a computer program does not require the authorization of the copyright owner, as long as the software has been rightfully distributed. This is also true if the software must, for example, be installed on a Hard drive or copied in RAM. Those acts are and inherent to softwares and any reproduction are in the ordinary course of their uses. There is no violation of the economic rights of the copyright owner. As there is no authorization to obtain from a copyright owner to read a book, there is no such authorization needed for the ordinary use of a computer program.

In the LiLiQ licenses, the rights that are granted are those granted by the Canadian copyright act, and the right to use is not one of them.

It is also my understanding that the term “reproduction” in the US copyright act might have been interpreted far more literally than it has been in Canadian law.  Nevertheless, section 117 of the US copyright act states that: “Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program [...]”.

In regard to most FOSS licenses, in the present case the the LiLiQ, someone who downloads and install a FOSS software is owner of the downloaded copy. As such, that owner does not need any authorization to simply install and use the downloaded software.

For example, someone who downloads and runs a Linux distribution under the GPLv2 does not necessarily becomes a licensee (see section 0 and 5 of the GPLv2). Still, he is the owner of the downloaded copy. Furthermore, since lots of FOSS softwares do not require users to read their licenses, this makes sense. Users should become licensees only when they exercise acts that would otherwise be considered as a breach of copyright. As stated before, merely installing and using a singly copy of a software is not a breach of copyright.

Even in the case of proprietary softwares, there should not be any need to accept a license (end user license agreement) to merely use them. There are still (a few) proprietary softwares without any licenses at all. A lot of pre-1995 softwares (mostly games) didn't have any licenses and relied solely on copyright law. Until recently, no games produced for consoles required an acceptance of any license to play them. It is my understanding that the “right to use” has been “created” by proprietary software editors in an attempt to circumvent section 107 of the US copyright act (licensed, not sold). See also Douglas E. PHILLIPS, The Software License Unveiled.  How Legislation by License Controls Software Access, New York, Oxford University Press, 2009, p. 12: “Ultimately, the license is the cause, not the consequence of the need for a license .”

To conclude, we are in the opinion that under civil law, a copyright license is a contract. Our licenses must be considered as granting copyright law rights, the “right to use” not being one of them. As long as no exclusive rights are exercised, there is no need to conclude a contract that would only allow something that is already permitted by law, without any counterpart at all.

Simon Johnson-Bégin, avocat  | Direction des affaires juridiques
Centre de services partagés du Québec | 875, Grande Allée Est, 4e étage, Québec (Québec) G1R 5W5
Tél. : 418 644-7934  | Téléc. : 418 646-0105
simon.johnson-begin at cspq.gouv.qc.ca | www.cspq.gouv.qc.ca

Veuillez prendre note que ce courriel est strictement confidentiel. Il est rédigé pour l’usage exclusif des employés du CSPQ concernés. À moins d’une autorisation expresse à cet effet, toute diffusion, distribution ou reproduction à l’externe est strictement interdite. Si vous avez reçu par erreur cette communication, veuillez en informer l'expéditeur par courrier électronique immédiatement et détruire l'original de ce message ainsi que toute copie.

More information about the License-review mailing list