As part of our discussions on responding to the EU Copyright Consultation, Benjamin Smedberg made an interesting proposal about how copyright should apply to software. With Chris Riley’s help, I expanded that proposal into the text below. Mozilla’s final submission, after review by various parties, argued for a reduced term of copyright for software of 5-10 years, but did not include this full proposal. So I publish it here for comment.

I think the innovation, which came from Benjamin, is the idea that the spirit of copyright law means that proprietary software should not be eligible for copyright protections unless the source code is made freely available to the public by the time the copyright term expires.

We believe copyright terms should be much shorter for software, and that there should be a public benefit tradeoff for receiving legal protection, comparable to other areas of IP.

We start with the premise that the purpose of copyright is to promote new creation by giving to their authors an exclusive right, but that this right is necessary time-limited because the public as a whole benefits from the public domain and the free sharing and reproduction of works. Given this premise, copyright policy has failed in the domain of software. All software has a much, much shorter life than the standard copyright term; by the end of the period, there is no longer any public benefit to be gained from the software entering the public domain, unlike virtually all other categories of copyrighted works. There is already more obsolete software out there than anyone can enumerate, and software as a concept is barely even 50 years old, so none is in the public domain. Any which did fall into the public domain after 50 or 70 years would be useful to no-one, as it would have been written for systems long obsolete.

We suggest two ideas to help the spirit of copyright be more effectively realized in the software domain.

Proprietary software (that is, software for which the source code is not immediately available for reuse anyway) should not be eligible for copyright protections unless the source code is made freely available to the public by the time the copyright term expires. Unlike a book, which can be read and copied by anyone at any stage before or after its copyright expires, software is often distributed as binary code which is intelligible to computers but very hard for humans to understand. Therefore, in order for software to properly fall into the public domain at the end of the copyright term, the source code (the human-readable form) needs to be made available at that time – otherwise, the spirit of copyright law is not achieved, because the public cannot truly benefit from the copyrighted material. An escrow system would be ideal to implement this.

This is also similar to the tradeoff between patent law and trade secret protection; you receive a legal protection for your activity in exchange for making it available to be used effectively by the broader public at the end of that period. Failing to take that tradeoff risks the possibility that someone will reverse engineer your methods, at which point they are unprotected.

Separately, the term of software copyright protection should be made much shorter (through international processes as relevant), and fixed for software products. We suggest that 14 years is the most appropriate length. This would mean that, for example, Windows XP would enter the public domain in August 2015, which is a year after Microsoft ceases to support it (and so presumably no longer considers it commercially viable). Members of the public who wish to continue to run Windows XP therefore have an interest in the source code being available so technically-capable companies can support them.