Portugal: Should We Still Doubt About The Legality Of Copyleft?

Last Updated: 23 July 2018
Article by Vera Albino

The concept of Copyleft emerged from the libertarian activism of the free software movement, which brought together programmers from all over the world, in the context of the explosion of new technologies, Internet and the spreading of intangible property.

Copyleft is a concept invented by Don Hopkins and popularized by Richard Stallman in the 1980s, with the GNU project whose main objective was to promote the free share of ideas and information and to encourage the inventiveness.

Thousands of works are currently used, distributed, modified and shared under the aegis of Copyleft. And while jurists still argue that it has no legal value, there is no doubt that Copyleft has a real impact on the creation, distribution and sharing of works.

The question, then, arises: should we still doubt about the legality of Copyleft?

Graphically and semantically contrary to Copyright, the legal valuation of Copyleft is essentially challenged by the existence and evolution of the notion of Copyright (A). However, the Copyright did not prevent the appearance of the notion of Copyleft and the two legal instruments appearing then, not contrary, but complementary (B). Notwithstanding, Copyleft ends up being a legal concept on its own right (C).

A. Origins and evolution of Copyright

The notion of Copyright appeared for the first time in England, in 1710, with the vote of the Statute of Anne. This statute has been strengthened and internationalized, in particular by its exporting to the United States, in order to respond to the authors' concerns about the challenges posed by the invention of printing.

The Copyright became the legal instrument to protect the authors from the mass-produced copies by creating a legal monopoly for their benefit, which valued their intellectual work and encouraged creation of works.

With the immediate effect of rewarding the authors, and ultimately promoting the advancement of knowledge in the general interest, as set out in the Copyright clause of the American Constitution, Copyright seems to meet the same ideals as Copyleft.

However, initially an effective legal instrument of promoting knowledge sharing, Copyright turned out to be also a redoubtable weapon in the hands of authors who wanted to impose prohibitive costs for the use of their works, putting this ideal at risk.

A reaction of the American Courts, carrying this constitutional ideal, appeared to be necessary in order to legally limit the scope of Copyright, allowing, at the same time, its legal survival. For that purpose, the courts invented a new legal concept: the "fair use".

The "fair use", issued from the jurisprudence of the 1920s, draws a legal context to undertake the balance between the individual and the legal interests of the author, as well as the general interest, making it possible to use Copyrighted works without seeking authorization from the Copyright holders.

This concept, remarkable in terms of inventiveness and modernity, enabled Copyright to respond to the growing demands arising from the fast and constant progress of science and technologies. Even though, the "fair use", which was based on the author's non-consent, presented, from its essence, a weakness which limited its use.

Although Copyright seemed to be able to adapt to any evolution, Internet development highlighted a real inability of the latter to respond effectively to new challenges.

Indeed, with the Internet, a new means of communication and transmission of works is born, which allowed a worldwide, free and instantaneous reproduction and distribution of works and knowledge. Additionally, with the Internet, the identification of the responsible person for the damage has become particularly difficult.

In this context, emerged a growing need for effective legal tools, able to respond to the authors' concerns about the dangers of instant copies of their works and capable of resolving complex global disputes.

Born for the Internet, on the Internet and because of the Internet, Copyleft presented itself as an innovative concept.

B. The emergence of Copyleft and its complementarity with Copyright

Originally considered as a simple utopic project confined to the world of software, Copyleft became a reality with the draft in 1989, of the GPL (General Public License).

The Copyleft license is defined by the GNU, as a "general method for making a program (or other work) free", and requiring all modifications and extended versions of the program to be free as well.

In other words, it is a method of managing works, whose primary purpose is to make them free: free to be used, distributed and modified by any user. Similarly, when modified or improved, they become in turn, and by virtue of the Copyleft, necessarily free for use, study, distribution and modification.

At first glance, the principles of Copyleft are contrary to the prerogatives of the Copyright holders. But are these two concepts really opposite?

Not only Copyleft and Copyright were both created in a context of technological change, to close existing legal gaps and to promote common knowledge, but, establishing a monopoly, they also equally responded to the existing problems.

With Copyleft a more romantic notion of the monopoly is set up: the monopoly of liberty. However, like any other monopoly, the monopoly of liberty must be conceived in a legal framework that protects it from abuse: the abusive and exclusive appropriation of free works by third parties.

It is at this level that Copyleft and Copyright are most closely linked, since Copyleft will be rescued from Copyright to preserve the works it manages. In fact, Copyleft consists of a classic Copyright, to which are added specific clauses of distribution, in the form of license, that third parties are required to subscribe in order to be able to use the works.

In this way, Copyleft licensed works are, free, both by their free access and use and by their ability to be protected against their exclusive appropriation. Therefore, Copyright is the means by which Copyleft develops and reaches its fullest effect.

C. Copyleft: a legal concept beyond Copyright?

Originally confined to the Internet world, Copyleft has gradually spread to other areas of knowledge.

The licenses have been adapted to literary, artistic and scientific content and currently cover fields as varied as seeds. Copyleft even appears to be the most appropriate tool for fields such as scientific research, which are rarely motivated by economic interests and much more concerned with the sharing and advancement of knowledge and the authorship of the work

Since its inception, the scope of Copyleft has grown steadily and Copyleft licensing litigation has been ongoing in US and European courts, although the legal framework surrounding it remains controversial.

While its attachment to Copyright is certain, some authors argue that it is desirable to make it independent of intellectual property, so that its legal value is no longer derived or disputed.

To this end, authors recall that Copyleft is intimately linked to fundamental rights, such as the right to education and the right to culture, and that there are numerous examples of texts of constitutional or supranational value which can help establishing a sound basis for an autonomous legal regime. We can mention: the European Convention on Human Rights, the European Social Charter of the Council of Europe and European jurisprudence, the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, among many others.

However, the American Courts have chosen to use the general principle of freedom of contract and the parties' autonomy.

The main question is to know whether Copyleft license had a contractual value. This value was denied by a substantial legal current who considered that, in order for a contract to be formed, a contribution had to be provided. This value was also denied by the Courts, which sanctioned the infringements of these licenses by means of a Copyright infringement (see the Jacobsen v Katzer decision).

This resistance, however, was unable to withstand the strong adverse arguments. On one hand, there was the argument that the contribution could be found in other contractual obligations provided, on the other hand, that such contribution was not a necessary requirement for the formation of the contract in the majority of the legal systems of the world.

Indeed, a US Court, in the Artifex Software V Hancom decision, recently recognized the contractual value of the Copyleft GNU-GPL license. Although, by this decision, the defendant was obliged to share the changes made to the Copyleft licensed software, believing that it could retain its exclusivity, this decision is positive in a way that it creates additional legal insurance for all those who make use of free licenses such as Copyleft. It is also an indicative of a significant lack of business, which is ignorant regarding the legal instruments they use.

It seems no longer relevant to ask whether Copyleft is truly legal, whether it really exists or whether it is a simple utopia. It was born to respond to a necessity, a weakness, a gap in the law, and has had real effects since the 1980s, which cannot and are no longer denied by the Courts.

Accordingly, it is important that economic actors become aware of its realness, since, like the case Artifex Software V Hancom, ignoring the validity of this legal concept is often to jeopardize intellectual property, and therefore the good health of business.

November 14, 2017

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