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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.

Item Type:	Refereed Article
Research Division:	Law and Legal Studies
Research Group:	Private law and civil obligations
Research Field:	Intellectual property law
Objective Division:	Law, Politics and Community Services
Objective Group:	Justice and the law
Objective Field:	Legislation, civil and criminal codes
UTAS Author:	Scheibner, J (Mr James Scheibner)
UTAS Author:	Nicol, D (Professor Dianne Nicol)
ID Code:	107299
Year Published:	2015
Deposited By:	Faculty of Law
Deposited On:	2016-03-09
Last Modified:	2018-03-08
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