Summary

The advent of the digital economy has had a radical impact on the way that intellectual property rights and information ownership are perceived and handled. Legacy systems of copyright, reserved rights, licensing and patents which date back to the 16th century are being complemented by alternative usage rights and licensing terms like ‘copyleft’, ‘some rights reserved’ and specific licenses like Creative Commons and GPL.

In this post, Pragmatic have teamed up with Aurelia Butler-Ball from Verisona Law who specialises in rights management for the creative industries to explain how WordPress is licensed and what that means for people and businesses that use it.

 

Situation

The GNU General Public Licence (“GPL”) is an open source licence for software and it is what governs the open source project that is WordPress.

As WordPress states, “…licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software — to make sure the software is free for all its users.”

Any software licensed under the terms of GPL, is deemed to be “free software”. That is, you have the freedom to:

  • Use the software for any purpose;
  • Share the software with your friends and neighbours;
  • Change the software to suit your needs; and
  • Share the changes you make

In contrast, closed-source licences such as End User Licence Agreements (“EULA”) give users a non-exclusive licence to use one copy of the software preventing them from changing or distributing it.

Software released under the terms of the GPL will stay free no matter who changes or distributes the program and the names of these developers must be identifiable. This is termed “copyleft” as instead of using the copyright to restrict users, it is used to ensure that developers can be acknowledged and the freedoms enjoyed.

Problem

So far, so simple and definitely so good. But as with anything, there are subtleties that bear consideration and the very idea of “copyleft” can cause conniptions within corporate legal departments. Here are some common questions we get asked, and answers.

I’ve created my own WordPress theme from scratch, surely that means it’s my copyright?

No (but see the question later about when the licensing is invoked). It is important to remember that GPL is a viral licence, so any hooks, modifications, modules relating to the software are too licenced under the GPL.

Therefore, any themes or plugins that are developed extend the functionality of WordPress (by using WordPress built-in APIs), so must be licenced under GPL too. Consequently, the user of your plug-in or theme will have the right to change and distribute it freely.

Can I sell GPL-licensed software?

Yes. There is a common misconception that the software released under the GPL cannot be sold. This is not the case. For instance, WordPress plugins available through Code Canyon are licenced under GPL but they must still be bought. Consequently, advocates of GPL proudly proclaim, that GPL is “free as in freedom, not free beer.”

However, whether you distribute copies of such GPL programs at a price or for free, you must pass on the same freedoms that you received.

This issue has caused some major rifts in the WordPress community (www.wpmayor.com/articles/wordpress-gpl-abuse, gplclub.org, etc).

But one thing that has become clear though is that whether the software itself is freely distributed, there is still great business to be done in providing support, updates, consultancy and services around that software. The WordPress hosting market alone is estimated to be worth $2bn globally and with over 70 million WordPress sites in the world, there’s no doubting that WordPress is a major component of the global digital economy.

If my business spends thousands developing a WordPress plugin, does that mean that anyone else can use it freely?

No. GPL is only applicable once the plugin has been distributed by the copyright owner. If the client has been assigned the copyright in the plugin under contract and decides to use the plugin only for his or her website, GPL is not triggered and the developer has no right to distribute it further. However, if the client does distribute the plugin, then GPL applies and the developer has the right to sell it to anyone they please.

gpl-by-jacob-levine-2

How does copyright work with GPL for developers?

It depends on the contract you use.

If you are an employee, your employment contract will almost always state that any work done for the company becomes the intellectual property of the company automatically.

If you’re a freelancer, you retain copyright to any work you do, unless your contract specifically grants copyright to your client. So if you’re a freelancer and you haven’t agreed that the client will own copyright for the software you write, even if they’ve paid you for your time, then you may freely distribute that software. If the contract DOES grant copyright to the client, then if they distribute it then you also gain the right to distribute it.

Implications

As a developer, it is important to know what rights you have in the software that you create in case you have the ability to utilise it further. Even if you’re an employee, if your employer distributes software applicable to GPL, then you have the legal right to distribute it too. Whether that contravenes other parts of your employment contract or not is something you’ll need to get individual legal advice on.

As a client, it’s really important that you understand that both your initial contract and what you do with the software after you’ve got it will both affect how it’s licensed.

At Pragmatic, our contracts always talk clearly and fairly about copyright and licensing and we’d recommend that whether you’re a freelancer, employee or client that you understand copyleft licensing. We hope this article has helped you to understand some of the issues and implications and shown that it’s totally possible to build and grow a business on GPL-licensed software, whether you’re creating it or using it.

Update 27th July 2015

There’s recently been a public spat between two significant actors in the WordPress scene and this article from Post Status is very much worth a read because it deals with several issues relating to IP and WordPress.

About Verisona Law

Verisona Law offers legal advice to companies and individuals working in all areas of new media. We provide our clients with the latest knowledge and support to enable them to thrive in today’s multiplatform digital world, where complex agreements with multiple parties worldwide are increasingly the norm. For further information, please contact Aurelia on acb@verisonalaw.com