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Do software patents inhibit open source licensing in Australia?

journal contribution
posted on 2023-05-18, 17:44 authored by Scheibner, J, Dianne NicolDianne Nicol
Open source licences are a particular form of intellectual property licensing arrangement where the licensor allows the development and redistribution of their derivative works, provided that the licensee complies with the terms of the licence. Open source licences can be distinguished from closed source licences, where the program cannot be modified beyond its released form and distributive development is not permitted, and are an increasingly popular form of licensing arrangement for software. While open source advocates argue that the framework of copyright law supports such licences, this has never been tested in an Australian court. Furthermore, it is uncertain whether software patents could inhibit open source licensing through the creation of exclusive exploitation rights. The now-settled dispute in the United States between Twin Peaks Software and Red Hat is used in this article as a hypothetical case study to explore the interface between open source licensing and software patents in Australia. This article also considers alternative strategies that could be used to protect software under an open source licence against a case of patent infringement.

History

Publication title

Australian Intellectual Property Journal

Volume

25

Issue

4

Pagination

198-219

ISSN

1038-1635

Department/School

Faculty of Law

Publisher

Lawbook Co

Place of publication

Australia

Rights statement

Copyright 2015 AIPJ

Repository Status

  • Restricted

Socio-economic Objectives

Legislation, civil and criminal codes

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