This is a request for comments, not a formal proposal.
Copyright almost works perfectly for software. It is free, automatic, has clear boundaries, and is easy to enforce. Unlike patents, copyright is egalitarian, as useful to the poor and weak as to the rich and powerful. It can be considered an ethical of protection. However copyright as applied to all creative works in general has two big problems when applied to software:
- The lifespan (life + 70 years) is much too long for software.
- There is no system for moving abandoned software into the common domain.
Here is a modest proposal for a new form of copyright that is specifically designed for software. I call this new form of copyright the "Software Trust". Software Trust balances the needs of software developers with those of society at large (software consumers). Like traditional copyright, Software Trust is free, clearly demarked, easy to enforce. But it has a much shorter protection lifetime, and provides a proper framework for moving abandoned software into the common domain.
The goals of the Software Trust proposal are:
- To ensure that abandoned software is properly released into the common domain.
- To provide a secure paper trail that can be used for conflict resolution.
- To provide software developers with useful infrastructure for their work.
- To provide a long-term framework for the creation of a "software commons".
- To be a compelling and economically-attractive alternative to long-term copyright.
Software Trust requires investment and support by a state agency.
To benefit from Software Trust, a copyright holder would have to register all versions of their software source code. This would be done at a centralised office, the European Software Trust (EST). Registration would be done using an ISO-standard source control protocol implemented in free software products such as Subversion.
Online registration has these benefits:
1. It provides a verifiable paper trail for dispute resolution.
2. It ensures that software source code is not lost when the copyright expires.
Registration would be free. Since most software development projects already use a source control protocol, registration would not create additional costs.
Unit of ownership
The unit of ownership in the Software Trust is an "archive". It would be up to the software developers to define how software sources are mapped to archives. An archive could be a single software program, an entire software product, or the full source code inventory of a company.
Definition of "source code"
A software archive can contain content that fits the criteria of "ASCII text file", can be properly versioned, and can be accessed and read with no special decoding software. Binary documents and media files would not be entered into an Software Trust archive.
Copyright on software source code placed into the Software Trust would last for a short period (5 years) after the date of last modification of the archive. That is, archives would automatically be opened to public use when no longer maintained. Any modification of the archive - even a trivial modification - extends the copyright period for all source code in that archive.
Confidentiality and security
Software placed into the Software Trust would be as confidential as required by the creator. Clearly the Software Trust will need a high level of security to be credible for commercial software creators.
Ownership and licensing
The ownership of a Software Trust active archive rests with the creator. When an archive becomes inactive, the ownership of all its contents passes to the European Software Trust institution, acting on the public behalf. The license for an active archive is defined by the creator. The license of an opened archive is a share-alike license along the model of the GPL.
Compatibility with TRIPS
Since the Software Trust system can work in parallel to existing copyright law, it creates no conflicts with TRIPS or other treaty obligations. A software creator has the choice of using existing copyright law, or the new Software Trust model.
Economic and Regulatory Model
Why would software creators use the Software Trust model? For free and open software developers, the answer is clear - good infrastructure at no cost. For commercial software developers, use of the Software Trust can be encouraged by:
- Government procurement can require that all source code is placed into the Software Trust;
- Use of the Software Trust can be promoted as "good ethical practice"
- Large customers may insist that their vendors use the Software Trust
- Software vendors who use the Software Trust may benefit from lower insurance
- Use of the Software Trust may be made mandatory for certain types of software
The development of a Software Trust prototype should be done by the European Commission as part of its research and development into innovation policy in Europe.
The Software Trust software itself should be developed as free software, based on standard interfaces, so that software developers can build a technological community around the Software Trust.
A production-quality Software Trust server would cost under euro 1M to develop and deploy. Running costs would be modest since the system would be largely automatic.
Through the combination of a state-backed escrow system for software source code, a contract by which ownership automatically changes hands after preset conditions are fulfilled, and a share-alike license, we can envisage the creation of a single, very long-lived archive of software source code, properly categorised by company and product, so that the symptom of "abandonware" can be solved.