Expert Opinion: «Information Technologies and Intellectual Property» questions and answers

The National Center of Intellectual Property publishes the speakers' answers on the questions posed by the participants of the round table «Information Technologies and Intellectual Property» at the TIBO 2024 forum.

Q: What exactly is meant by derivative works that must be distributed under the GPL if the development used GPL-licensed source code? For example, if the developer used open source code and this amounted to 1/100 of the entire derivative work, is there an obligation to distribute the entire work under the GPL license? And if the developer (performer) under the agreement with the customer is obliged to assign the exclusive rights to this work to the customer, it turns out that the performer has no right to do this, because the exclusive rights to the developed software (software) (which is a derivative work of open source code) are not «legally pure»?

Response provided by Kirill Laptev (Partner at Anischenko Laptev law firm, member of the Advisory Board at the National Personal Data Protection Center of the Republic of Belarus):

- The percentage of borrowing does not affect the obligation to comply with the terms of the GPL if the «derivativeness» of such software as a copyright object can be established. The developer may transfer the exclusive right to the software he created as a derivative work under an assignment agreement subject to the terms of the license, in particular, that the customer also undertakes to distribute it under the terms of the GPL. However, in some jurisdictions the doctrine of fair use may apply, and in some cases borrowing part of the source code will not be a violation of the GPL if such software is published under different terms (see the case of Google LLC v. Oracle America, Inc.).

A recording of the roundtable is available at this link.