"Creative Commons is the future; software IP is not worth the lawyer's fees"

You do not have to spend money on lawyers' fees to protect many forms of IP; that protection arises automatically and it is free. In other cases you really do need a patent agent (not a lawyer) to steer you through the complexities of patent registration. (See article on the different approaches to software-related patents in the UK, EU and US.)

All forms of licence, including the Creative Commons licences available at (http://www.creative.commons.org.uk), are not an alternative to intellectual property. The fact that they are licences (permissions granted by the IP owner) underlines rather than undercuts the concept of intellectual property. Were there no IP there would be no need of a licence or the owner's permission to use the IP.

Creative Commons licences are one form of licence. There are other forms of licence that are freely available.  See for instance http://www.own-it.org/ and www.innovation.gov.uk/lambertagreements.

The key to success is to use the correct form of licence, i.e. one that achieves your commercial objectives and a form of licence that works in the jurisdiction in which you are operating. 

Most Creative Commons licences are not designed to be used for software. The Creative Commons website does give you access to the GNU GPL and GNU LGPL that originate from http://www.gnu.org.  These are forms of open source licences and need to be used with care.

Not least, before you license any software as open source, you need to consider whether you want to give your competitors the royalty free right to use and exploit your software and the ability to take market share from you, or whether you want to license your software on a basis that generates revenue, i.e. not on an open source basis.  Many people are looking at open source business models, but as yet most businesses prefer to rely on the more old-fashioned model of licensing software in return for fees and not allowing their competitors access to their code.  After all, it worked for Bill Gates (and a few others).

You also need to be careful about using licences that originate in another jurisdiction where the law is different. For instance you would be foolhardy to use a US form of exclusion clause to try and limit your liability in a transaction governed by English law; the odds are that the clause would be ineffective. The GNU licences exclude implied warranties of merchantability and fitness for purpose, but that wording would not effectively exclude the terms of satisfactory quality and fitness for purpose implied by English law. 

If you would like further advice about any of the issues considered above please contact Christine Reid on 01865 864195 or email her at christine.reid@northwoodreid.com.

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This article is not intended to be, and should not be taken as being, legal advice. The law often changes and it varies from jurisdiction to jurisdiction; the information in this article is generic in nature and specific legal advice should be taken before acting on any of it.

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