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GPL and Proprietary Software

  • April 30, 2020
  • Sián Fields (Copyright IP & Technology, Data Privacy and Commercial Law Specialist)

You cannot incorporate GPL-covered software in a proprietary system. The goal of the GPL is to grant everyone the freedom to copy, redistribute, understand, and modify a program. If you could incorporate GPL-covered software into a non-free system, it would have the effect of making the GPL-covered software non-free too.

A system incorporating a GPL-covered program is an extended version of that program. The GPL says that any extended version of the program must be released under the GPL if it is released at all. This is for two reasons: to make sure that users who get the software get the freedom they should have, and to encourage people to give back improvements that they make.

However, in many cases you can distribute the GPL-covered software alongside your proprietary system. To do this validly, you must make sure that the free and non-free programs communicate at arms length, that they are not combined in a way that would make them effectively a single program.

The difference between this and “incorporating” the GPL-covered software is partly a matter of substance and partly form. The substantive part is this: if the two programs are combined so that they become effectively two parts of one program, then you can’t treat them as two separate programs. So the GPL has to cover the whole thing.

If the two programs remain well separated, like the compiler and the kernel, or like an editor and a shell, then you can treat them as two separate programs–but you have to do it properly. The issue is simply one of form: how you describe what you are doing. Why do we care about this? Because we want to make sure the users clearly understand the free status of the GPL-covered software in the collection.

If people were to distribute GPL-covered software calling it “part of” a system that users know is partly proprietary, users might be uncertain of their rights regarding the GPL-covered software. But if they know that what they have received is a free program plus another program, side by side, their rights will be clear.

About the author

Sián Fields (Copyright IP & Technology, Data Privacy and Commercial Law Specialist)

Sián Fields is a Reynolds Attorneys consultant specialising in copyright IP and technology law, data privacy law and commercial Law. She has an LLM in Commercial Law with a specialisation in Electronic Law, and has extensive experience in information technology and telecoms, and offshore and local data privacy laws.
  • Copyright IP & Technology
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Nicole Copley

NGO law

Nicole Copley is an NGO lawyer who works for NGO clients all over South Africa and internationally. She qualified with a BA LLB LLM (Tax) from the University of KwaZulu-Natal, Durban (with a Masters in tax exemption), and is a Master Tax Practitioner SATM.

Nicole advises on, drafts and amends founding documents for and sets up every sort of organisation required by South African NGOs. She makes tax exemption and 18A (deduction of donations) applications, and applications to be registered with the Nonprofit Organisations Board. She (and her team) keep registrations up to date and assist with compliance and reporting. She also NPO reporting and other services. She advises on re-structuring and assists not-for-profits in understanding and applying the useful provisions of B-BBEE.

She also does commercial drafting work for her NGO clients, vetting and drafting agreements for them. She works for a wide range of types and sizes of organisations and aims to provide a pragmatic and efficient service. Her decades of experience in consulting to NGOs means she takes the long view, is focused on governance, ethics, credibility and sustainability and steers clients away from quick fixes, helping them build/renovate so that the organisation outlasts current office bearers.

Nicole works with other consultants to the not-for-profit sector, collaborating on training, newsletters, advising government on legislation for the sector and, most recently, a series of practical guides for the sector, called “NGO Matters”, originally published by Juta but now published by Nicole as NGO Matters Publications.

She has been a consultant since 2019.

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