The development of new programs using open source involves compliance with the requirements of open licenses, primarily copyleft licenses.
Open licenses either do not contain a definition of a derivative work or use definitions that differ from national legislation. Therefore, when resolving a dispute, a Russian court will apply the legal concept of a derivative work, which is understood to be a work created as a result of the adaptation of the original work. A special case of adaptation is the modification of a program, i.e., making any changes to it, including translating such a program from one programming language to another. The legislator distinguishes between modification and adaptation of a program, which means making changes solely for the purpose of running the program on specific technical means of the user or under the control of specific programs of the user. Adaptation of a program is permitted without the author’s consent and without payment of remuneration.
Uncertainty as to whether any modification of a program is an independent work gives rise to practical difficulties. Suppose that the author has posted a project on Github, where any person has the right to create a new version of the program based on a fork, i.e., a copy of the source code. If the author of the project approves the proposed changes, they are incorporated into the original code. In a situation where any modification of the program is an independent work, it can only be used in the project with the consent of the developer. With the constant development of open source projects involving hundreds of developers, the rights to each new version must therefore be consolidated. However, the use of an open license does not always ensure that this goal is achieved. To solve this problem, developers usually enter into a contributor license agreement, under which they transfer the rights to their versions to the project manager. In the absence of such individual agreements, the rights to modifications can be consolidated on the basis of an “inbound = outbound license” and an “implied license.” . The first type of license agreement assumes that any modification of the software is automatically distributed under the license of the final product. However, in order to recognize its existence, it is necessary to prove that the author of the modification knew or should have known about the terms of the original license and agreed to grant such a license to any person in the future. An implied license, as the name suggests, is derived from the behavior of the parties, and in order to give it legal force, it is necessary to establish the implied will of the author, but this possibility does not exist under Russian law.
The problem of consolidating rights to each version of the program can be solved by applying the rules on co-authorship. At the same time, the application of the co-authorship regime to open source is fraught with certain inconveniences: the inability to dispose of the right without the consent of all co-authors and to allocate shares in the exclusive right. Nevertheless, it is permissible to use such a program, since the law states that a co-author does not have the right to prohibit the use of a work without sufficient grounds if it forms an indivisible whole. Software, although not always a single whole, can be considered as such for the purposes of this rule, since the consequences of prohibiting the use of a separate component may lead to the inability to use the software as a whole and to unreasonably high losses for other co-authors and users. The application of the co-authorship regime also minimizes the negative consequences of “copyright trolling,” since, as a general rule, the income from the use of the work is divided equally among the authors, and therefore, a malicious actor will not be able to claim any benefit. However, the co-authorship regime cannot be applied in situations where third-party open source software is used in the creation of a project, as they do not contribute creatively to the project and do not intend to become its co-authors.
Let us return to the original question about the criteria for modifying a program and turn to judicial practice. To determine modification, courts proceed from whether the changes serve as a basis for the appearance of new functions in the program, modules, or significant improvements to existing functions. Thus, in one case, when appointing an expert examination, the court explained that modification indicates “a change in the functionality of the program, the appearance of new properties and capabilities of the program, the automation of previously non-automated manual operations, and other improvements that go beyond the adaptation of the program for a computer.”
