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Keywords:

  • open source software;
  • multi-licensing;
  • sui generis;
  • software protection

Abstract

Debate has been raging since the 1960s regarding intellectual property and software protection, primarily focusing on its accommodation within existing traditional intellectual property structures or sui generis approaches. Eventually, software protection was accommodated within a range of intellectual property rights, contract law and technological measures. However, several occurrences in the past three decades highlight developing fissures in the mode of software protection; certain other developments highlight increasing acceptance and ease in implementing sui generis protection. Correspondingly, the open source software licensing structure has emerged with a novel and extremely successful adaptation of intellectual property law. It has led to emergence of the multi-licensing scheme, where software is licensed under two or more licensing structures—one of which is open source and the other “proprietary.” The multi-licensing scheme reveals several similarities to various sui generis software protection proposals. Perhaps this is an indication of and validation that the industry has evolved to such an extent that there is a need to rethink the mode of software protection. Based on this premise, this article attempts to develop a proposal for a sui generis Model Software Law.