Can the authorities use open licence software in their work? Regarding this question, there are certain manipulative statements, which are fueled on the one hand by ignorance of the specifics of creating and licensing open source software, and on the other – by the high competition of software manufacturers and their desire to maintain their market share.
To a large extent, this applies to geographic information systems (GIS) – software that is widely used in land management and urban planning, analysis of destruction, forecasting the cost of restoring infrastructure and ecosystems, and many other tasks. The wide scope of GIS applications and the availability of a large amount of data cause the dynamic growth of the geographic information systems market – in 2021 it was estimated at more than 10 billion dollars, with a projected annual growth of 13-15% until 2027.
It is not surprising that the implementation of open source software, which is mostly distributed under a free license, meets some resistance from competitors who distribute their products under other types of licenses and at high cost.
In order to clarify the situation, we turned to Nina Bilousova – candidate of legal sciences, associate professor of the Department of Civil and Labor Law of the Law Institute of the Kyiv National Economic University named after Vadym Hetman, who, using the example of the open GIS QGIS, gave an answer to the question posed in the title, in the form of a legal opinion.
We present it below and hope that it will help the representatives of the authorities in making informed decisions about the choice of software for solving current applied problems.
regarding the legality of using free and open source software
in the preparation of urban planning documentation and further work with it, using the example of QGIS software (QGIS Desktop)
І. General information about free and open source software
Today, two types of software are used on the international and domestic markets: so-called “proprietary” or commercial and free open source software (FOSS or F(L)OSS for short), the difference between which lies in their rights holders’ approaches to licensing.
«Open Source» is a software-licensing model where the source code of the software is typically made available royalty-free to the users of the software, under terms allowing redistribution, modification and addition, though often with certain restrictions. The support, training, updates and other services for the software may be provided by a range of entities, increasingly under commercial arrangements. «Commercial Software» is the model where the software developed by a commercial entity is typically licensed for a fee to a customer (either directly or through channels) in object, binary or executable code. The commercial entity often provides support, training, updates and other similar services needed by customers to efficiently use that software. The source code of the software may be made available to certain users of the software through special licensing or other agreements, but is usually not distributed to the general public, and may not be copied or modified except in a manner provided for in such agreements. [source]
As a rule, free software is distributed with open source code, but such characteristics as “free” and “open” are not synonymous, but indicate different “freedoms” provided by the right holder to users of the software.
The World Intellectual Property Organization’s (WIPO) Glossary of Copyright Terms and Related Rights defines the concept of “software” as not only a computer program in itself, but also a detailed description of the program, which includes a set of instructions for the program and all types of accompanying documentation, necessary for the understanding and use of the program, in particular, the instructions for the user.
Thus, software consists of a computer program and accompanying documentation related to it. Free software is distributed with free documentation, i.e. under free licenses that allow its copying and modification.
It is important to emphasize that both free open source software and commercial (proprietary) software are objects protected by copyright. Free open source software is not a work in the public domain, but is protected by copyright at the same level as commercial (proprietary) software. However, free open source software is one of the ways of realizing copyright, it is a certain form of distribution of software as an object of copyright, which is based on the exclusive copyright property rights of the right holder and is carried out in accordance with the terms of the so-called free open source license , which are a type of copyright contracts (deeds).
In the Copyright and Related Rights Licensing Guidelines developed by WIPO, free open software licenses are defined as one of the types of licenses in the field of copyright.
Public organization The Open Source Initiatives is engaged in promoting and informing about various aspects of the use of open source software, which has developed standards, subject to compliance with which the designation “open source software” can be used by software developers when distributing it. Yes, an open source software distribution license must meet the following criteria:
- Free Redistribution. The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.
- Source Code. The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost, preferably downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed.
- Derived Works. The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.
- Integrity of The Author’s Source Code. The license may restrict source-code from being distributed in modified form onlyif the license allows the distribution of “patch files” with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.
- No Discrimination Against Persons or Groups. The license must not discriminate against any person or group of persons.
- No Discrimination Against Fields of Endeavor. The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.
- Distribution of License. The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
- License Must Not Be Specific to a Product. The rights attached to the program must not depend on the program’s being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program’s license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.
- License Must Not Restrict Other Software. The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.
- License Must Be Technology-Neutral No provision of the license may be predicated on any individual technology or style of interface.
The Open Source Initiatives has introduced a procedure for confirming the status of a license as open, and on the website of this community you can find a list of confirmed (accredited) free open licenses, among them GPL Version 2 (GNU General Public License, version 2).
On the other hand, standardization in the field of free software is handled by the public organization The Free Software Foundation, whose website contains a list of free licenses that meet its standards. A mandatory requirement for free software is that its users should have at least four freedoms:
- The freedom to run the program as you wish, for any purpose (freedom 0).
- The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this.
- The freedom to redistribute copies so you can help others (freedom 2).
- The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.
A free license is only one that provides all these 4 freedoms to the software user. One of the main free software licenses is the GNU General Public License (GPL).
Therefore, rights holders who develop and distribute computer programs (software) can only state that it is “free and open” if the license under which they distribute the software meets the above criteria.
Thus, free open source software is an internationally recognized form of realization of author’s property rights (exclusive intellectual property rights) in software by the subjects of these rights (right holders), which consists in the distribution of software under free open licenses. The criteria of “free” and “open” software do not coincide, however, as a rule, open software is distributed as free – under free licenses, the most common of which is the GNU GPL license, developed by the Free Software Foundation, which has several versions (version 2, version 3).
ІІ. Legal regulation of the use of free open source software in Ukraine
Computer programs are protected by copyright as literary works:
– Article 4 of the Copyright Treaty of the World Intellectual Property Organization;
– Part 1 of Article 10 of the Agreement on Trade Aspects of Intellectual Property Rights;
– Article 180 of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their member states, on the other hand;
– Part 4 of Article 433 of the Civil Code of Ukraine;
– Article 18 of the Law of Ukraine “On Copyright and Related Rights”.
According to Article 1 of the Law of Ukraine “On Copyright and Related Rights”, a computer program is a set of instructions in the form of words, numbers, codes, schemes, symbols or in any other form, expressed in a form suitable for computer reading. computer, which put it into action to achieve a certain goal or result (this concept covers both the operating system and the application program expressed in source or object codes).
The possibility and, even, the expediency of using free open source software is established by a number of secondary legal acts:
1) The Cabinet of Ministers of Ukraine, approving the Concept of software legalization and combating its illegal use, included the use of free analogues of commercial software among the main organizational measures for the legalization of software in state authorities.
2) The definition of a computer program for free use is contained in the Rules for the use of computer programs in educational institutions: “a computer program for free use is a computer program distributed under the terms of a license that allows the user to: use the program for any purpose; access to software code; any studies of the mechanisms of the program’s functioning; use of the mechanisms (principles) of functioning of any arbitrary parts of the program code to create other programs and (or) adapt to the needs of the user; reproduction of the program and distribution of copies of the program in any way and in any form; modification and free distribution of both the original program and the modified one under the same conditions as the original program;”
3) According to the Procedure for the use of computer programs in executive authorities:
licensed computer program – a computer program that is used under the conditions specified in the license;
license to use a computer program – permission to use a computer program under the conditions specified by the license, granted by the right holder;
acquisition of licensed computer programs or licenses for their use and installation of computer programs by executive authorities is carried out taking into account the need. At the same time, only licensed computer programs are purchased and used, which must have a corresponding license in paper and/or electronic form and, if available, other documentation in paper and/or electronic form, which is provided by the right holder (if available) to users of licensed computers computer programs.
Clause 10 of the Procedure states that the head of the information technology unit:
submits to the head of the executive authority proposals on the need to purchase new computer programs (or computers with pre-installed programs), ensures the receipt of the necessary computer programs distributed free of charge, and their inventory;
The Ministry of Economic Development and Trade of Ukraine approved the form for submitting information on the results of the planned inventory of computer programs in accordance with paragraph 14 of the specified Procedure. Section 2 of this form “Summary information on computer programs” provides the headings “Proprietary computer programs” and “Free computer programs”.
4) The state targeted scientific and technical program for the use of open source software in state authorities for 2012-2015 provided for the creation of conditions for the use of open source software in state authorities, taking into account its functionality and optimization of budget expenditures.
5) In accordance with the resolution of the CMU of January 30, 2019 No. 56 “Some issues of digital development”, the State Agency for Electronic Government of Ukraine has developed Methodological recommendations on compliance with the principles of implementation by executive authorities of the principles of the state policy of digital development. In order to be consistent with the principle of “openness” of the state policy of digital development, executive authorities are recommended, in particular: “to apply the concept of openness of data, information systems and software, the manager (owner) of which they are; recognize the data belonging to them as open, unless otherwise established by legislation; provide equal opportunities for open source software and demonstrate active and motivated adoption of open source software; give preference to open standards and formats, provided they adequately cover functional needs and support innovation.”
6) Determining the strategy of implementation of digital development, digital transformations and digitalization of the state finance management system for the period until 2025, the Government identified one of the tasks aimed at achieving the strategic goal of implementation of digital development – the implementation and dissemination of standards and specifications that use open source software.
ІІІ. Use of free licenses by authorities of Ukraine
The scope of use of free licenses is not limited to software, under such licenses various content is distributed on the Internet: texts, photos, video, audio. According to the information posted on the websites of official institutions, state authorities and local self-governments join the popularization of free licenses in Ukraine and offer the use of content from their official websites under the terms of Creative Commons free licenses. In particular, it can be seen on the websites of: Ministry of Economy of Ukraine, Kyiv City Council, Ministry of Culture and Information Policy of Ukraine, Ministry of Defense of Ukraine, Administration of the President of Ukraine, Ministry of Development of Communities and Territories of Ukraine.
ІV. Characteristics of the free open license for QGIS
QGIS desktop software is free and open, as stated on the official website of the project, and is distributed under the free and open license “GPL version 2 or any later version“. QGIS software is one of the projects of the non-profit organization The Open Source Geospatial Foundation (OSGeo), which is a legal entity registered in the state of Delaware and operates under the jurisdiction of the USA.
The software as well as the documantations is available for downloading from qgis.org website. The software part QGIS desktop is distributed on the basis of the free open license GPL Version 2, and the text of this license is Appendix A to the User Guide of this software.
According to the GPL Version 2 license, the user is granted permission to copy, distribute and modify the program (software part). The license does not restrict the execution of the program (use for its functional purpose), but instead imposes requirements for copying and distributing only those results of the execution of the program that can be classified as derivative programs, that is, programs that contain at least a part of the original program.
The license does not establish requirements for the distribution of all other results of the program, which are not derivative works in the sense of copyright. Pursuant to Section 5 of the GPL Version 2 license, by copying, distributing, or modifying the program, any person accepts the terms of this license.
Thus, by downloading a copy of the “QGIS desktop” software, each user receives a license (permission) to copy it, which means that such a copy of the software is legally obtained, some additional optional packages can be downloaded for a fee.
According to Article 1108 of the Civil Code, a person who has the exclusive right to allow the use of an object of intellectual property rights (the licensor) can give another person (the licensee) a written authorization that gives him the right to use this object in a certain limited area (license for use of the object of intellectual property rights). The license for the use of the object of intellectual property rights can be issued as a separate document or be a component part of the license agreement. The license for the use of the object of intellectual property rights can be exclusive, single, non-exclusive, as well as of another type that does not contradict the law.
Since the license is a unilateral deed (is an expression of the will of one party), its form is subject to the requirements of the law of the jurisdiction that apply to its content (Articles 31, 32 of the Law of Ukraine “On Private International Law”). In our case, this is the right of the United States, as the state of the location of the right holder – the non-profit organization The Open Source Geospatial Foundation (OSGeo). Free open licenses in the form in which they are usually granted are recognized in the US as a type of copyright license.
Domestic courts recognize open licenses as legitimate permissions of copyright holders.
V. Regarding the legality of using QGIS software by producers of urban planning documentation, as well as by authorities when processing urban planning documentation
The creation of documentation using the QGIS software is the result of the execution of the program (its intended operation), which is not limited by the terms of the GPL Version 2 license, which is explicitly stated in clause “0”:
«The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.»
On the contrary, according to the principles (standards) of free software, a program is free if its users have four freedoms, the first of which is the freedom to execute the program as one likes for any purpose (freedom 0).
In accordance with Article 24 of the Law of Ukraine “On Copyright and Related Rights”, a person who legally owns a legally produced copy of a computer program has the right, without the consent of the author or another person who has a copyright to this program, in particular, to enter into the computer computer program changes (modifications) in order to ensure its functioning on the technical means of the person who uses this program, and taking actions related to the functioning of the computer program in accordance with its purpose, in particular recording and saving to the computer memory, as well as the correction of obvious errors, unless otherwise provided by an agreement with the author or other person who holds the copyright.
Producers of urban planning documentation, as well as officials of state executive authorities and local self-government bodies, other subjects, by downloading a copy of the “QGIS” software to their computer, are thereby copying the program, which indicates their acceptance of the terms of the GPL Version 2 license. This allows them to use this program for its intended purpose (and, subject to its terms, to make copies of the program, distribute them and modify the program). The indicated persons, thus, act as end users of the software.
Based on the definition of “computer program” contained in Article 1 of the Law of Ukraine “On Copyright and Related Rights”, a computer program is a set of instructions expressed in source or object codes in the form of words, numbers, codes, schemes , symbols or otherwise, expressed in a form readable by a computer, which causes it to act to achieve a particular purpose or result. Urban planning documentation is not a computer program, and therefore the copyright of the owner of the software “QGIS” does not apply to urban planning and other documentation that is created with the help of the execution of this software. In the process of producing documentation, the “QGIS” software acts as a tool. According to the GPL Version 2 license, it does not matter whether the software is used for business or the performance of official functions or otherwise. The permissions granted by this license apply in any domain.
The documentation that is part of the QGIS software is distributed under the GNU Free Documentation License, which is Appendix B of the User Guide, allowing copying and modification.
It should be noted that when using the free open source software “QGIS”, state executive authorities should take into account the requirements of the Procedure for the use of computer programs in executive authorities, in particular:
– executive authorities install computer programs that use information from unified and state electronic registers, after identification and authentication of the source of receipt and establishment of compliance with samples in which the absence of undocumented functions is confirmed by the results of state expertise in the field of information protection;
– the responsible person compiles an inventory list of computer programs;
– the responsible person issues a registration card for each license to use a computer program in electronic or paper form indicating the computer on which the license is used, or indicating the employee to whom it is assigned, if the terms of the license to use the computer program provide fixing it by the user, and not by the computer on which it is installed. The record card must contain information about the employee who is licensed to use the computer program, and/or depending on the licensing principle – information about the computer on which it is used, the name, type of computer program, the date of its installation, the name of the manufacturer or distributor, if necessary – details of the license. The registration card is stored in the information technology department for the duration of the license.
By downloading a copy of QGIS software from the official website of this project, any person thereby accepts the terms of the GPL Version 2 license, which means that they legally own a copy of such program, acquiring the right to execute (use as intended), copy, distribute and modify it. Urban planning and other documentation, which is produced using QGIS software, is not a derivative computer program, and therefore the copyright of the owner of QGIS software does not apply to it. To confirm the legality of ownership and use of a copy of QGIS sftware, it is necessary to keep a copy of the GPL Version 2 license, which is part of it, in electronic or paper form.