A little bit of Copyright and Intellectual Property
As an explanatory premise, a simple idea can be had by anyone and usually they do not manage to be protected, except by some viable alternative mechanism, different when it comes to specific works. It is also true that emotions can be involved in people around an idea, sometimes due to differences, ignorance or incomprehension of the frame of reference. The following are scenarios of interest that are subject to protection and are regulated.
The software is an intangible good for the author or titleholder of the work, corresponding to the field of copyright and intellectual property, for which, in order to be used, a license is required and it is ultimately the license (under specific terms), which is sold or acquired when it is marketed, since the good itself or intellectual property of the proprietary (or private) software is not sold or assigned to a public or final consumer.
In the context of intellectual property, in Colombia software is protected as a literary work, and generally in Colombia, unlike hardware, software is not subject to industrial protection by means of a patent, although it is possible to find a way. For example, a procedure of a utility model (industrial) that is supported or leveraged by a given software could be patented, understanding that such patent operates as a monopoly for a period of 10 years for its exploitation.
Continuing with the concept of intellectual property, it is important to take into account that there are moral and economic rights. The moral rights correspond to the original author (natural or legal) and do not expire, while the economic rights correspond to a holder for their exploitation (without necessarily being the original author) and do expire. In the case of a natural person they last up to 80 years after the death of the author (Art. 21. Law 23 of 1982). In the case of a legal entity, they last up to 50 years after the creation of the work (software). On the other hand, it is to be understood that in a legal entity such as a software company, an employee does not acquire intellectual property, unless otherwise agreed, since this would correspond to the entity’s assets.
The economic rights can be transferred to be exploited by another one, by means of a specific and punctual cession of rights, or exclusively if it is the case, which would suppose a significant retribution, if we take into account that besides the exploitation, theoretically the highly intellectual knowledge is the most important means of production in the current era, even above the earth. In works in the public domain, only moral rights are protected and their use is granted to the community.
Copyright protects the form but not the ideas, understanding that they are of an abstract nature, such is the case of business, commercial or administrative ideas (also because of free competition). In the case of software, the written code is protected, for example, to avoid plagiarism or unauthorized distribution, among others. It is true that dreaming does not cost anything, so much so that although everything starts with an idea, in terms of costs, in principle it would cost zero (0) pesos (no taxes are applied either), different is the time of materialization or implementation to obtain a tangible result after the gestation of the idea (for example, software product in its initial version or a preliminary version or prototype, business plan, constitution of a business, etc).
It is clear that copyright does not protect the idea but the specific form, if there are alternative mechanisms to seek to protect an idea, such as trade or business secrets (e.g. the formula of Coca-Cola), or confidentiality clauses in contracts or negotiations. On the other hand, everyone is free to preserve or keep in his or her privacy an idea that he or she considers key, so a personal protection mechanism is to avoid commenting on the idea if it is not the right time or the right person to talk to. Neither is it possible to be an extremist, handling everything with mystery, to open up and create opportunities.
It would then be valid to compete with a software product in the market within the legal parameters but the cost, time, scope of functionalities or differentiating factor would have to be evaluated in a technology project, in addition to a realistic potential market and technical or field research. That is, if to start competing it takes me about two years to build for example a software platform with a minimum team and starts with a low price strategy for market introduction, how long would the investment be returned? Would it be viable? Normally, when there are high-ranking investors interested in a project they ask about the barriers, which also obey the above.
However, from an individual’s point of view, it is better to have knowledge or information of this type when making a decision, because as Karrass Chester says in the negotiation manual:
In business one does not get what one deserves, but what one negotiates for.
In my opinion, I would add that when an unfavorable negotiation has been made, it could be renegotiated if a consensus is admitted in the parties involved, and for this purpose neither can one pretend to disadvantage the other party but it can open up to a viable point or path if a significant imbalance is evident. If this is not achieved, the above quotation becomes evident again.
Avoid confusion with free layer services that have a defined time or scope or involve servers. This issue is only about software licenses on components or applications that can be installed without warranty or support, in many cases open source, and do not generate any cost for license, different from other items for services or support. It is therefore important to distinguish production from maintenance by support, and in some cases to distinguish the levels of that support or service. Of course, at the license level we refer basically to the production. It can also be said that this type of software, or licensing, is free for the user’s use and frees the producer or author from responsibility.
For those who are looking for commercially friendly licenses, where code libraries, components or free software are incorporated, we can quote: MIT, ISC, BSD New, Apache 2, EPL, LGPL, MPL. Most of these licenses have no further requirement for use, except perhaps for MPL which involves compliance with a clause that consists of providing the source files licensed under MPL, even if the software is linked within an executable file, so if you feel that this can be forgotten then you have the others. The MIT license has more freedom and can be found in many code libraries or languages like Rust, NodeJS, ReactJS. Apache 2 is often used by big players in the industry who release free software products. LGPL is also found in code libraries (some as intermediaries with GPL code). ISC has similarities and freedoms such as the MIT license. The BSD New license has aspects of freedoms like MIT and is the one used in the FreeBSD operating system, on which macOS is based being a private or commercial product.
On the other hand, there are licenses such as GPL which seek to preserve the open source philosophy (where the source code must be delivered as is) and are usually not compatible or suitable for commercial purposes, unless the same producer licenses his product in another version which is commercial and where it adds certain features (dual project). In fact, recognized companies in the software industry use this strategy to segment the market according to the scope: unsupported or commercial with support. However, the installation or provision of a software with GPL (such as Linux, MySQL, MariaDB, OpenJDK) is a different service that can be charged, even the media (CD/DVD), in this sense you can market software with this license but it is not convenient to incorporate software components with GPL in a project that wants to keep its protected code. Perhaps one allowed way is the invocation of commercial software to software with this license, such is the case of invoking sentences of the Linux system from another application. Servers for web site hosting and cloud computing services, usually use free software and in many cases GPL.
It must be understood that for an end user (even if it is a company), you can use or install products from all the above-mentioned free software licenses. However, when we refer to free software, we are not necessarily referring to free software, but to one that is known as “Freemium”, with a proprietary license customized by the producer, in which certain conditions usually apply, such as that the code would not be available and that it also has no warranty. A software producer can take license-friendly free software components to release a “Freemium” product and provide another line or paid-for version with support. Typically, the use of free software to leverage new projects or reduce costs encourages new free software to be produced (“freemium”), donations to used projects to take place, or a chain of favors where a third party can receive support.
If someone were to ask how free software is involved if no guarantee is offered? This brings us to a legal issue where no commitment is made resulting in coverage and assessment for services instead of the license. It is also a way for the author of free software to avoid mixing intellectual property with some company in a project, that is, a client or whoever hires the author could not own that intellectual property but could use it, in some cases in derivative projects. On the other hand, patent software is protected from generic cases that would delay technological development, for example, the mechanism of a spell-checking dictionary used in a word processor. Therefore, quality can be obtained without any requirements and support by acquiring services, recognizing projects that have matured or exercise good practices regardless of their license, in some cases, from large industry or foundations that promote free software.
Producing free software, as well as “freemium”, can be a way to promote a project, product or related service, and at some time began to generate a culture and mentality different from piracy that was not sufficiently controlled at the enterprise level. However, it tends to generate an expectation of zero cost that is often misinterpreted until the event that services are required that have their value. In fact, there can be negotiations with commercial software where the supplier can give a grace period on the amount of the license or interesting discount when the services that are contracted are numerous and prolonged (projects that exceed the year).