The Legal Issues Surrounding Free and Open Source Software: Challenges and Solutions for the Government of Québec

Abstract

The Government of Québec is slowly but surely turning its attention to the issue of free and open source software in response to the interest shown by Québec’s software industry and the attention paid to the phenomenon by governments around the world. This openness is easy to understand given an environment in which online service provision to citizens must be enhanced while minimizing expenditures on technology, curtailing service providers’ control over the administration, and promoting the development of the information society in Québec. Nonetheless, as we see in the news, adoption of this new attitude toward to software development is not always immune to legal challenges. Consequently, the manner in which Québec law interacts with free and open source software, as well as the associated risks, assume a particular significance. The analysis we present here reveals that the law, as it currently stands in Québec, appears adequate to effectively address the various legal issues inherent in the use of free and open source software. First of all, no legal rule seems to be incompatible with the validity of free and open source licences, despite that fact that few of them were designed with the Québec legal system in mind. Moreover, both federal copyright rules and Québec regulations affecting contractual liability allow the authors and users of free and open source software to effectively preserve the freedom of computer code, which is typically the purpose of free and open source licences. Nonetheless, it remains the case that some legal risks are associated with free and open source software. These risks may arise from the formalism requirements included in the Copyright Act, prior violations of intellectual property rights by third parties, or simply from the broader contractual protection afforded to licensors. Consequently, integrating free and open source software into the technology strategy of the Government of Québec requires setting up some initiatives to allow these risks to be mitigated as much as possible and to enable the management of those risks that cannot be completely eliminated.