Copyright Law

Derivative Works and GPL3

By Peter Moldave

In my mind the most important and most misunderstood issue in open source licensing is the concept of derivative work (or a work “based on” a previous work, in the words of the new draft of the GPL. And, I don’t think the revision of the GPL being proposed does anything to clarify things.

A lot of work has been done in trying to address the intersection of open source and patents. Certainly, it seems that if open source is going to work the way the folks behind the GPL want it to work, the treatment of patents should be clarified.

In an effort to make terminology work under laws in addition to the United States, the draft uses the following:

The GPL extents its reach to a work “based on” a GPL’s work. As defined, “A work “based on” another work means any modified version, formation of which requires permission under applicable copyright law. ”

I think this is the wrong approach. Having spent some time trying to understand and explain when permission is necessary, I always find myself having to say “it depends on the facts and circumstances”. For example, permission may not be necessarily needed in an academic situation compared to a commercial situation. I much pref the approach of the Creative Commons, which addresses permitted uses much more explicitly.

Full post as published by OpenSourceLegal on September 20, 2006 (boomark / email).