Re-Constructing Intellectual Property Law in a Knowledge Society
Edited by Thomas Riis
Chapter 5: Open source licences
This chapter analyses the extent to which open source licences accord with and thereby support the model of user generated law which was outlined in Chapter 1. Initially, we will address the legal protection afforded to computer programs under statutory copyright law. Hereafter, we will scrutinize the concept of open source licences. Finally, we will examine the relationship between open source licences and the notions of “emergence”, “diffusion” and “adoption” in the user generated law model. In order to understand the nature of open source licences it is necessary to understand the legal starting point for protection of computer programs. In the 1950s and early 1960s computer programs were integrated parts of the computers used. As computer programs became separated from the hardware (and third party suppliers started developing programs during the late 1960s and 1970s) questions arose initially as to whether computer programs should be legally protected. These soon gave way to questions about how such programs would be protected. It was the general perception that programs needed some kind of legal protection in order to ensure the necessary incentive for companies to invest in the development of computer programs. A number of different models for legal protection were discussed, including sui generis protection of computer programs.
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