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

[Kevin Fleming]

Thank you very much for that detailed analysis :-)

On Sun, Sep 20, 2015 at 10:37 PM, <Simon.Johnson-Begin at cspq.gouv.qc.ca>
wrote:

>
>
> 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
>
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