Open Source Licensing

Jillian Chia highlights the pitfalls to avoid when adopting open source software


The use of open source software in development of new software has become a popular trend in recent times particularly amongst individual software developers and smaller software development companies. Bigger software development companies on the other hand have also become more open to the idea of open source and therefore many such companies are now making their software’s source code available in the public domain.




The open source movement is based on the belief that source codes of software should be freely accessible, modified and redistributed. However, open source does not just mean free access to source codes. The Open Source Initiative (, provides the most widely accepted “open source” definition, though there are several other groups who claim to own the term “open source”. Open Source Initiative stipulates that in order for software to be considered as open source software, the following criteria have to be fulfilled:-



1. Free Distribution

The open source licences should not restrict anyone from selling or giving away the software as a component of another software. The licence should not impose any royalties or fees.


2. Source Code

The program distributed must disclose the source code and must allow distribution in source code as well as in compiled form. The source code must be easily accessible (i.e. downloadable from the internet) and in a form which allows for easy modification. Deliberately obfuscating the source code is not permitted.


3. Derived Works

The open source licence must allow for modifications and derived works.


4. Integrity of the author’s source code

The open source licence may prevent the source code from being distributed in modified form subject to the licence allowing for the distribution of “patch files” with the source code for the purpose of modifying the program. The licence must explicitly permit distribution of the software built from modified source code.


5. No discrimination against persons or groups

The grant of the open source licence must be non-discriminatory.


6. No discrimination against fields of endeavour

The open source licence must not prevent anyone from making use of the source code in any specific field (i.e. for commercial use, for medical research etc.).


7. Distribution of licence

The rights attached to the open source program will apply to all to whom the program is distributed to without the need of execution of an additional licence by those parties.


8. Licence must not be specific to a product

The rights granted with the open source software must not depend on the program being part of a software distribution.


9. Licence must not restrict other software

The open source licence should not place restrictions on other software that is distributed with it.


10. Licence must be technology neutral

The provision of the licence should not be based on any individual technology or style of interface.




Some of the more commonly used open source licences are:-


  • GNU General Public Licence (GPL)
  • “Lesser” General Public Licence (LGPL)
  • Apache Licence
  • Berkeley Software Distribution Licence (BSD)
  • Mozilla Public Licence


There are various types of licences which govern the use of open source software. Some licences are simple and do not require modifications to the software to be distributed under the licence. On the other hand, some licences require any derived works, such as modifications or software based on the open source software, to be redistributed under the terms of the original licence and the source code to be made available.


Open source software are usually provided on an ‘as is’ basis without any warranties as to the performance or functionality of the program. Further, there are no warranties in relation to any intellectual property rights or non-infringement thereof. Therefore a problem that may be encountered when using open source software is that technical support for the program may not be readily available.


There is a risk that the open source software may infringe third party intellectual property rights due to the fact that the software may have passed through the hands of various software developers who may have infringed rights of third parties.




As the use of open source software is governed by particular terms, software developers must understand that each open source licence is different. Choosing the right open source software will depend on the requirements and goals of the developer. As such, one should take into consideration the following factors when deciding to use open source software:-


1. Ownership

If a software developer wishes to possess all proprietary and intellectual rights in his newly developed software (which incorporates open source software), this may not be possible with certain open source licences. Certain licences require the disclosure of the source codes even for the derived or modified work.


2. Profits


What will the newly developed software be used for? If the software developer intends to make a profit from licensing his software to others, this may not be possible with the use of certain open source software as some licences do not allow fees or royalties to be charged. Further, as the source code of the newly developed software may be required to be disclosed to the public, it is unlikely that third parties would agree to pay for the newly developed software when such software should be provided without charge.

Certain other open source software licences permit the developed software to be owned by the author (excluding the open source portions) and fees to be charged for the licensing of the newly developed software.


3. Licence Conditions


Software developers should have clear policies on the use of open source software. This would include proper legal review of the terms and conditions before using the software to ensure compliance with the obligations set forth under the licence conditions and awareness of the activities which are permitted or not permitted under the licence.



4. Documentation

It is good practice to ensure that proper documentation is kept particularly in relation to which open source software has been used and how it has been used in the newly developed software. It would be a prudent measure to ensure that a proper audit and record is made with regard to the open source software used.




The concept of open source has made the development of new software much more convenient and efficient with the easy accessibility of source code for various types of software. Nevertheless before using open source software, software developers should always be mindful of the licence conditions imposed. It would be important to ensure that such licence conditions can be complied with and are in line with the commercial and non-commercial objectives of the software developer.





JILLIAN CHIA YAN PING ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )



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