Re: Reusing GPL code without applying GPL legal in Europe?
Dear All,
I am a Polish lawyer currently preparing a doctorate on the protection
of user freedoms.
I have written on the scope of GPLv2's copyleft clause under Polish law
(the link to the Polish version of the article is:
http://ksiewicz.net/?p=17, I am working at making my page bilingual and
the English version should appear shortly).
In Polish copyright law there is also a fair use quotation right.
Generally, fair use does not apply to computer programs in Poland, but
this specific right does apply. I believe, however, that it would be
hard to use this right to circumvent the GPL and use portions of free
code in proprietary software. This is because of general limitations of
fair use together with specific limitations that apply to translations
of computer programs (object code being a translation of source code).
Let me quote what I wrote in the article (please note that I use the
term "fair use" for convenience only; Polish provisions should not be
understood to mirror American ones). Below, I refer to articles of
Polish Copyright Law available in English at:
http://www.wipo.int/clea/docs_new/en/pl/pl010en.html)
"The „copyleft” clause does not cover elements of a program not
protected by copyright. Furthermore, it may not be applied to such
protected elements, the use of which is allowed under the provisions on
fair use. The scope of fair use as applied to computer programs relevant
for the purposes of avoiding „copyleft” clause seems narrow. Lex
specialis of Art. 77 excludes the application to computer program of
most of the fair use provisions of Copyright Law. Nevertheless, outside
this exclusion remains Art. 29, which regulates fair use quotations.
Golat believes that this provision allows to reference to other programs
in a newly created program.[1] Unfortunately, Polish doctrine does not
provide additional guidance on the limits of such referencing. ...
Art. 29 allows to quote fragments of already published works or small
works in whole, if it may be explained by, inter alia, „laws of the type
of arts”. One should consider whether the laws of the art of software
writing would be such to permit the use of ready-made libraries or
modules in new programs [or other portions of code]. Perhaps it should
also be worth considering, whether the Free Software Movement, with its
specific moral norms, customs and the interpretation of the GPL
advocated by its drafters forms a type of arts on its own. These laws
would permit quoting to a great extent; however, under condition of
observing the „copyleft” clause. On the other hand it is not clear
whether the „copyleft” construed as the law of an art may reach as far
as requiring the publication of source codes from anyone who included in
his program even the smallest portion of free code.
Practical importance of fair use quotation lies in citing fragments
translated from source to object code that is not human-readable. If
there is such legal possibility, it undoubtedly is the way to
appropriate fragments of free programs or even small free programs in
whole. It is well known that to quote is to take somebody's work as it
is, without changing a word, but at the same time it is allowed to cite
a translation,[2] while the object code is nothing else than a
translation of the source code. The requirement to mention name of the
creator or source provided for in Art. 34 may be an obstacle here, but
it does not seem to totally block the possibility to quote programs
covered by the GPL. However, the relation between Arts. 29 and 35 should
definitely be considered, that is whether the avoidance of „copyleft”
clause with the use of fair use quotation infringes the „due interest”
of free software writers.
Nevertheless, it should not be expected that Art. 29 provides a real
threat to the „copyleft” clause, not to mention the possibility to use
somebody else's code in one's own programs at all. Besides the
limitations contained in the provision itself, it should be stressed,
that fair use is a limitation on a general rule of author's monopoly and
should not be interpreted excessively (exceptiones non sunt
extendendae). Moreover, special provisions for computer programs impose
even farther limitations, especially for the translation of computer
programs, which would be necessary to avoid the GPL. Namely, according
to Art. 75.2.3 it is allowed only in order to reach interoperation
between independently created computer program with other computer
programs, which can rarely be an excuse for the creation of a
proprietary program containing portions of free code.
References:
[1] KATARZYNA GOLAT, RAFAŁ GOLAT, PRAWO KOMPUTEROWE (ZAGADNIENIA
PODSTAWOWE) [COMPUTER LAW (BASIC ISSUES)], 144 (Wydawnictwo Prawnicze,
Warszawa 1998).
[2] J. BARTA, M. CZAJKOWSKA-DĄBROWSKA, Z. ĆWIĄKALSKI, R. MARKIEWICZ, E.
TRAPLE, USTAWA O PRAWIE AUTORSKIM I PRAWACH POKREWNYCH. KOMENTARZ
[COPYRIGHT LAW. COMMENTARY], comments on art. 29 (Dom Wydawniczy ABC,
2001, wyd. II)"
Kind regards,
Krzysztof Siewicz
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