In a judgment pronounced in early August, which will encourage the open-source movement (Jacobsen v. Katzer, available at http://www.cafc.uscourts.gov/opinions/08-1001.pdf), a US Court of Appeals (Federal Circuit) held that a copyright holder can control the future distribution and modification of her work (through, for instance, means such as open-source licenses) even if she has dedicated the work to free public use. Under US law, a copyright owner granting a nonexclusive license to use her work waives her right to sue for copyright infringement – she may only sue for breach of contract. Nonetheless, if a license is limited in scope, then the right to sue for copyright infringement is not waived.  

The Court held that the terms of the particular license in issue before it which appeared to protect moral rights (and would under US law not be recognized as limiting the scope of the license) pertained to issues of attribution and other such factors. Typically these would be understood as moral rights, not enforceable under US law. Nonetheless, the Court chose to include those rights within the domain of copyright protection by holding that rights of attribution serve to “drive traffic towards the open-source incubation page and inform downstream users of the project”. This was considered to be a “significant economic goal” of copyright law.

The importance of the decision seems to be that it allows an indirect recognition for moral rights. While not expressly moving away from the position that US copyright law seeks to protect economic goals, it broadens the notion of these goals to include protection of moral rights which may have only a tangential and indirect effect on economic activities as such. The decision seems to be taking the US position closer towards recognizing moral rights in an author’s work.

The position in countries which have already expressly recognized moral rights should be much clearer. Just because an author allows free usage of her work does not mean that she waives the moral rights in the work. The terms of the license allowing free usage must be complied with, and one can argue that even without an express statement in the license, moral rights must necessarily be respected. Given that moral rights are in some sense ‘personal’ to the author of the work, it may be a better position that in cases where license agreements are silent on the issue, moral rights must be deemed to be not waived because of allowing open-source availability.

The US judgment is important for one other reason – it observes that open-source has led to creative collaboration that serves to advance arts and sciences at a pace which a few decades ago would have been impossible. If this is empirically true, then it casts grave doubt on the “promotion of innovation” rationale for protecting intellectual property rights. Indeed, a recent report (http://www.theinnovationpartnership.org/en/ieg/report/) prepared by an international group of experts seems to highlight these difficulties, and suggests that the IP-innovation link may need to be examined more thoroughly.