Copyright News
Open-Source Licensing in
Software and Associated IP risks
By Clarisse Mideva
rogrammers write source codes to
direct computers to perform a certain
task. The source codes are eventually
turned into object codes (machine language),
turning the software into an executable pro-
gram. These source codes are protected under
the Kenya Copyright (Amendment) Act,
2019 as literary works. Source codes can be
either proprietary or open and most license
agreements often reflect this distinction. For
proprietary licenses, the rights holder retains
the exclusive control over how the software
is used, modified and distributed. Therefore,
to use and exploit the software, the user
needs a license. Examples of proprietary
software include Microsoft Windows, Adobe
Flash Player, Oracle’s version of Java, Adobe
Photoshop etc.
Open source licenses, on the other hand, do
not limit the use in this manner. They can be
divided into 3 categories i.e. Academic licenses
(e.g. Apache, MIT, BSD); Reciprocal licenses
(e.g. GPL); and Content licenses (e.g. Creative
‘Open source’ basically refers to a software-
licensing model where the source code of the
software is made available royalty-free to the
users of the software, under terms allowing
use, copying, distribution, and modification
with certain restrictions depending on the type
of license chosen. For instance, the GPL license
has a ‘copyleft’ clause, meaning, if one chooses
GPL, he/she is required to distribute the soft-
ware under the same license he/she received
it under. The user will then be free to use the
source code if he or she agrees to the license
terms. It is, however, important to note that the
word ‘free’ in open source does not imply ‘free
of charge’ or that the software is in the ‘public
domain’, but it relates to the core freedoms that
accompany the software.
Open source has essentially taken over the
world. Established companies such as Micro-
soft and IBM have invested heavily in open
source developers making them leaders in
the space. Many of the software applications
we are familiar with have been built on open-
source software for instance the Google chrome
browser and the Netix internet television ser-
vices. Anyone can download the source code
behind Facebook’s user interface; Google’s
Android operating system among others.
Proponents of open-source believe that
open collaboration allows software to evolve
via the contribution of many users. Studies also
show that it has become a key ingredient to in-
novation in the US and also in Kenya. A good
example is Tesla and Nairobi’s ‘Tunapanda
Institute’. Tesla is an American company that
specialises in electric vehicle manufacturing.
It has made part of its self-driving software
open source, specically its Linux source code
for the Model S and X cars, therefore allowing
other carmakers to use it. Tunapanda Institute
has also been using open source tools to pro-
vide technology, design, and business training
in East Africa. The team set up ofine comput-
er labs in rural areas in Kenya, Tanzania, and
Rwanda, using a custom modied Edubuntu
distribution designed for use in areas where in-
ternet service is sparse or expensive. They use
open-source software such as Inkscape, Gimp,
Blender, Wordpress, and Syng Studios to en-
sure learners gain skills such as programming.
These are just two of the many examples.
Intellectual property risks
associated with the use of
open-source software
There is the risk of IP infringement in open
source software. This may happen when; a
software developer/programmer downloads
an open-source program to which a previous
user has added an infringing source code from
a proprietary software, therefore exposing him
to liability for infringement; or the programmer
uses a source code from a proprietary software
without a license and mixes it up with the open-
source software for instance using Apache,
which is open source, together with Oracle’s
version of Java, which is proprietary, without
Oracle’s permission.
It can also be very difcult for copyright
holders to track down the rst person who in-
fringed on the proprietary software because
other programmers may have made numerous
improvements in the process. Previous law-
suits concerning the use of the Linux operat-
ing system serve as a reminder that open source
software has the potential to make a user liable
for infringement of others’ intellectual property
(IP) rights.
Many companies or individuals who com-
mission programmers to develop software do
not include an indemnication clause in their
contracts making them liable too in case of
any infringement. An indemnication clause
is a provision in the contract under which one
party promises to cover losses in case their ac-
tions cause harm or prompt third parties to sue.
This is a very important clause, especially when
seeking the services of a programmer. One will
be shielded by this clause if the programmer in-
fringes on someone else’s software.
How to mitigate the risks
Software developers need to decide how they
want to share their software with the public. If
they want to make money from monopolising
the source code, they should not consider re-
leasing it as open-source, rather, make it pro-
prietary. They should also make sure that they
understand and abide by the terms of the license
when using open-source software to develop
their software. This is after they have conducted
due diligence on the software to be used to en-
sure there will be no infringement.
Software users, on the other hand, should
conduct due diligence on what types of soft-
ware they are using and then decide if open
source software or proprietary software is be-
ing used. Many organisations do not care about
the kind of software they use until they are hit
by a lawsuit. It is not surprising that most of
them are using fake or infringing software in
running their day to day business. They should
also review the terms of any associated soft-
ware licenses to be able to dene where the po-
tential liability exists, and consider whether the
benets of continuing to use the open-source
software outweigh the risks of Intellectual
Property liability.