Glossary

To Be Mixed with Proprietary Software

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When we talk about free software, one of the issues that most often get discussed is whether it is possible to integrate free software with non-free ones. The original GNU GPL, with the goal in mind that free software should always be free, does not allow the integration of free software with non-free ones, except in the sole case when such integration is only a simple aggregation. This is designed to prevent free software from becoming non-free software after such integration and hence making it no longer free. Many licenses after the GPL do not necessarily impose such restrictions. Some of them even have relatively relaxed requirements in the hope that free software can take a bigger market share and the idea of free software can be more widespread. Different licenses have usually different, detailed terms on this. Issue of compatibility, integration and combination is not limited to the interaction between two free software programs. Such issue also exists between free and non-free software programs. The derivative work that results from the two programs brings forth issues such as the choice of license terms and compatibility. For example, if programs A and B are licensed under licenses A’ and B’ respectively, and programs A and B are combined into the program C. Because program C is the derivative work of both programs A and B, C is bound to the terms of A’ and B’. If A’ and B’ are not compatible, the effectiveness of the integration of A and B will be affected. For detailed discussion, please refer to the section “Compatibility”.

Sublicense

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The copyright holder may grant a third person the right to use his or her own work. The territory, duration, content, means of such use and other related issue may be decided in the agreement between the copyright holder and the licensee. For example, an author can grant a publisher the right to reprint his or her own work in a given quantity and to sell the reprinted book in a certain area within three years. This means the two parties can agree on terms they set up. If the licensee grants the rights obtained to a third party, this is called sublicensing. The two parties in a sublicensing agreement are the party that sublicenses and the third party, and the sublicensing terms must be within the rights obtained by the licensee. To put it in simple terms, sublicensing means the licensee grants in the role of the rights holder the rights that he or she has obtained to a third party. What is to be noted, however, is that the sublicensing model is not the normal in the Copyright Law cases. Therefore, if in a license the terms do not explicitly permit sublicensing, sublicensing is in legal terms seen as not allowed. Sublicensing is possible whether the rights are granted exclusively or non-exclusively. The difference is that in the latter case the licensee is required to have the copyright holder’s consent. In the case of exclusive licensing, the licensee assumes the legal role of licensor. If the agreement does not specify that no sublicensing is allowed, the licensee can decide on his or her own whether he or she wants to grant the rights to a third party. In terms of free software licenses, almost all licenses are non-exclusive ones. Some licenses, such as the MIT License, the MPL or the CPL, explicitly specify that the licensee may sublicense, so that the act of sublicensing does not require the consent of the author of the original work, thus giving users more flexibility in the use of a software program.

Royalty

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Royalty is the price paid by the licensee. The sum of the price, the way it is paid, and other details are agreed by the parties involved. In intellectual property licensing terms (patent, trademark, copyright), the payment of royalty is seen as the compensation of a work that is the fruit of a person’s intellectual efforts and is therefore a crucial part of the terms. For example, patent royalty usually takes a certain percentage of the revenue or the profit of sales generated on the licensee’s side. To afford this expenditure, the licensee will have to exercise control on and make use of the rights obtained. If the licensee sublicenses the rights to a third party, this is done for the sake of marketing or profitability, not on the intention to promote such patented technology. Royalty also applies to copyrighted works such as printed works and computer programs. Free software means openness and sharing, and in terms of these concepts, licensing here means an expectation that the user can make the best use of the original work. It is not in the intention of such licenses that any charge of royalty would restrain the licensee’s willingness to further distribute the work. This is why almost every free software license would claim that it is royalty-free. Some licenses allows the licensee to charge a third party a fee higher than the cost of distributing the work, but this does not equal to the royalty charged by the copyright holder. The major difference, between a royalty and a fee higher than the cost of distribution, lies in that the royalty is not a one-time fee. It can be charged like tax, i.e. it can be charged according to the duration of use, subject of use, or any other conditions and can occur more than one time. The collection of royalty can be flexibly changed and is always effective on the licensee. The fee that is higher than the cost of distribution is one-time in nature. Although it has the same appearance for a charge, but it does have a completely different meaning.

Proprietary Software

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If we define proprietary software as what it is not, it refers simply to software programs that do not fit the definitions of free software made by Free Software Foundation (FSF). FSF defines the term free software as: a software must allow anyone to use, reproduce, distribute freely the original work along with any modified derivative works, regardless whether a fee is charged, and the source code of the program must be provided as only with open source code can the users modify the program. In contrast, proprietary software covers software programs that do not open the source code and shareware programs that allow distribution but do not provide source code for download. It also covers “shared source” software programs that give users read-only access to the source code under specific conditions but do not allow users to perform modifications or further distribution. The term proprietary means “privately owned and controlled.” On the other hand, authors of free software program still possess copyrights. It is just that they adopt licensing terms with unspecified licensee that exercise a relaxed control over the way the software program can be used. If the term “proprietary” is used in a free software license, it simply means what does not fall within the category of free software.

Original Work

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According to the Copyright Law, a work is what is created in the realm of literature, science, art or other academic fields. It must be therefore a product of mental and intellectual activities on the creator’s own behalf. A work that satisfies such prerequisite can be then subject to the protection of the Copyright Law. The term “original work” is opposite to the concept of “derivative work” (please refer to “Derivative Work” for detailed discussion). The term stresses that the work itself is not derived from other people’s works. In terms of computer programming, so long as a programming work does not make use of other people’s program code, such work is said to be an original work. According to this definition, not only independently developed program is original work, the patch that results from the modification of a third person’s program is also an original work. This is because the patch does not include any expression of the source code of the original program and therefore fits the definition of an original work. The patch is also subject to the protection of the Copyright Law. It can be distributed independently without the concept of the copyright holder of the program the patch is designed to modify.

Multiple License

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A copyright holder may grant other people rights to use his or her own work. As for where and when the work can be used, how it can be used, or the details of such use, these will be agreed upon by the two parties. Anything that is left out of the agreement is regarded as rights not granted by the copyright holder. A copyright holder’s economic rights include rights to reproduce, to express verbally in public, to broadcast, to play on screen, to perform in public, to display, to edit, to modify, and to lease. The copyright holder can grant specific rights to different licensees using licensing terms. Multiple license henceforth is defined as such that the copyright holder sets up different licensing terms for different licensees, regardless if such act is taken at the same time or in a different order of time. In terms of open source software, the copyright holder sets up a given set of licensing terms to the general public regulating the rights granted. In its nature, however, the license is still a legal act between the licensor and some certain licensees. As a copyright holder can have different licensing terms for the same work, if a person needs different ways of using the work, he or she can contact with the copyright holder for a different set of licensing terms.

Modification

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The Copyright Law grants copyright holders the right to forbid others modifying their works. Because of this, the copyright holder’s consent must be obtained before a work can be translated, instrumentalized, rewritten, shot as film or be modified into another work. Modification in terms of computer programming belongs to the above category of modifying a work. When a programmer modifies other people’s program, he or she can specify that the modification is combined into the original work, thus making the modified work a derivative work (see “derivative work”). If such is the case, the programmer needs the copyright holder’s consent for both the modification and the distribution. On the other hand, the programmer can make the modifications an independent “patch” that does not include any expression of the source code of the original work. The patch then becomes an original work, the distribution of which requires therefore no consent from the copyright holder of the original program. This is because if the patch file does not include the source code of the original program, it can be seen as an independent work, rather than as the derivate work of the original work. In most free software licenses, the copyright holder usually grants the licensee the right of modifying the program and distributing the modified program. But if the terms do not specify such terms, the licensee will only be able to distribute the modified form as a patch and will not be able to include the source code of the original work in the patch. This is because, according to the Copyright Law, if the license does not specify a right to be granted, such right should be seen as not granted by the copyright holder. Please also note that the programmer does not need the consent from the copyright holder when he or she distributes the patch. On the other hand, when a user installs the patch, the action equals to the modification of the original work. The user, therefore, has to take notice if he or she is granted the right by the copyright holder to perform such modification.

License

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Licensing is a legal act. In licensing, a licensor grants a certain portion of the rights to the licensee. This does not mean a complete transfer of rights. The granting becomes effective when the both parties have agreed upon the terms. The copyright holder usually specifies in the licensing terms which rights the licensee can have, how the licensee can make use of the work licensed, in which region or territory the work is licensed, the duration of the license, and so on. That is left out of the licensing terms is regarded as unlicensed, and therefore the licensing terms should be as well thought and detailed as possible. Licenses are most often divided into two categories, exclusive and non-exclusive (please refer to “Exclusive/Non-Exclusive License”), or by the criterion whether the licensee can sublicense. In contrast to transfer, which changes the copyright holder, licensing simply permits another person to use the work, and the licensor still holds the copyright.

Exclusive/Non-exclusive

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A copyright holder can set up different licensing terms for different licensees. On the other hand, if the copyright holder has agreed in a license that certain or all rights are granted to a licensee in a certain period and that the rights will not be granted to others during such period of the time, this license is said to be an exclusive license. When the licensor adopts an exclusive license, he or she will not be able to grant the specified rights to other people. The copyright holder himself or herself may also not be able to exercise the rights granted to the licensee. If no such excluding clauses appear in a license, such is said to be a non-exclusive license. Under exclusive license, as the copyright holder grants rights to a single party, the work may not be fully made use of. This may cause disadvantages to the social goods or the development of knowledge and technology. In free software licenses, therefore, licensors will explicitly express that the terms are not exclusive, so that the rights can be granted to different people at the same time. Exclusive license is a closed, excluding relationship made with a specific person or under specific premises and excludes non-licensees from using the work. Non-exclusive licenses, on the other hand, can grant rights to unspecified number of people. Free software programs must therefore be licensed under non-exclusive terms.

Distribution

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Distribution means: to make the work’s original form or replica available for the public to trade or circulate. This covers trading, granting or leasing with or to a specific or unspecific number of people. According to the Copyright Law, the right to distribution belongs to the copyright holder. The copyright holder has the exclusive right to transfer such right to distribute the work. In free software licenses, the right of distribution is granted by the licensing terms to the licensee so that the latter can distribute the work under the terms.