Abstract

Software developers and IT companies have been for many years using components distributed under free licences (open source software) for development of their own IT systems. Using open source components has many benefits – it contributes to time saving and usually guarantees a well-tested code with a minimum number of errors. However, when availing oneself of open source solutions. one should also be aware of specific legal aspects for using this type of solutions associated e.g. with the problem of determining law applicable to free licenses. This issue may be of considerable significance for the effectiveness of granting a license (as regards an adequate form or required contents of such license agreement) as well as for the terms and conditions of using open source software (including dispositive clauses outlining the terms of using such software with respect to issues not provided for in the agreement).

The authors make an attempt to determine the law applicable to open source licensing agreements basing on the provisions of Polish and European private international law. The authors draw attention to the difficulties in determining the law applicable to open source licenses basing on Art. 4(2) of the Rome I regulation in connection with the specificity of such agreements and impossibility of unequivocally setting the characteristic performance. The authors’ attention is also focused on the possibility to determine the applicable law pursuant to Art. 4(4) of the Rome I regulation, i.e. under the law of the country with which the open source licensing agreement is most closely connected.

The article analyses several potential concepts as to how the law applicable to open source licensing agreements could be determined, the analysis having been performed not only basing on the literal wording of the provisions of private international law, but also taking into account practical consequences of adopting individual concepts. The authors also present their opinion as to the most adequate concept applicable in the practice of copyright transactions.