April 1, 2005
Additional Information Concerning the Treatment of Computer Software Under the Copyright Policy:
How can I or the University own software I create if I decide to use open source licensed software in its creation? Isn't the software I create using open source licensed software owned by no one?
No. Open sourcing software does not affect ownership; it does not place the work in the public domain. It affects the rights granted to the owner under copyright law. Under copyright law, the owner of the copyright in software has these exclusive rights:
(1) to reproduce the software in copies;
(2) to prepare derivative works based on the copyrighted work;
(3) to distribute copies of the work to the public by sale, lease or the like. Open sourcing affect these rights.
Generally, open source licenses state that derivative works may be prepared by others (so the owner of the copyright in the work relinquishes the exclusive right to prepare derivative works [(2) above] when s/he creates software using open sourced starting materials). Some open source licenses also state that in distributing the work no royalties or only a nominal royalty can be imposed (so the copyright owner's right to distribute copies publicly for a fee under (3) above is affected when the author creates software using open sourced starting material).
As a faculty member, can I use open source software in the software I create?
Yes. The policy does not place constraints on your choice of materials.
Even if I have an intent to commercialize the software?
Correct. This may affect the University's ability to commercialize the software and you may wish to consider this consequence in determining whether to use open source software in your work.
Why is the University taking ownership when there is an intent to commercialize computer software and not when there is no intent to commercialize computer software?
Because in this case the property, and ultimately its value and its marketing requirements, is more like a patent property than your typical University copyright property, a scholarly publication. Like a patent, efforts must be made to commercialize the property. Like a patent, a business can be founded around the property and the property can be used to raise revenues. However, with computer software not intended for commercialization, these factors do not apply and the property is more akin to your typical University copyright property.
What if I have no intent to commercialize software I create initially, but then change my mind? If the author of the software is the owner of the copyright, then the author would assign her/his ownership right to the University. Can I distribute any software I create under an open source license?
If you are the owner of the copyright in the software, you can distribute it via open source under any open source license you choose. Section 2.10 of the Copyright Policy only applies to University-owned software.