Legal Aspects of Ownership in Modified Open Source Software and Its Impact on Russian Software Import Substitution Policy

Computer Law & Security Review. 2016. P. 193–210.

Savelyev A.

In my previous publication I tried to show how personal data legislation may be used for achieving national sovereignty purposes[1]. In this one I will demonstrate how open source software may be used for achieving similar purposes. However, interplay between local copyright law, public procurement law and open source community norms create lots of issues relating to the legal status and ownership in modified software based on open source. It becomes especially actual in cases with so-called copyleft open source licenses, where a collision occures between copyright as an absolute right enforceable against the world and the copyleft provisions of license agreement, which may be treated as “rights in personam” enforceable only against the licensee. Exclusive right to derivative software as an independent object of copyright may come into conflict with restrictions inherited from incoming copyleft license. This paper provides an overview and analysis of such problems faced by Russian software developers attempting to comply with Russian import substitution provisions by using open source components. Although, it is based on Russian law, it may be applicable to other jurisdictions, since it is driven by general aspects of copyright law and its interaction with private international law and contract law. The paper concludes that the developer of software, containing code licensed under GPL or other copyleft provisions receives full exclusive right to the derivative software and can commercialize it as he sees appropriate, subject only to possible claims on breach of contract, not on copyright infringement. This opens wide perspectives for using open source components regardless of the type of license used as bricks for building de-globalized economy and society based on information sovereignty principles.

 

 

[1]Alexander Savelyev. Russia’s new personal data localization regulations: A step forward or a self-imposed sanction? // Computer Law & Security Review. Volume 32/1, 2016. P. 128-145.

 

 

Keywords: импортозамещение, модификация, программа для ЭВМ, open source, import substitution, открытая лицензия

Publication based on the results of: Information Society Challenges: Legal Aspects of Information Security (2016)