Published by ZDNet Australia, January 14 2004

A shift to open source development models could inadvertently limit the prospects of Australian government agencies sharing locally developed software, a legal expert has warned.

Professor Brian Fitzgerald from the School of Law at Queensland University of Technology told attendees at this week's Linux and Open Source in Government Conference in Adelaide that the impact of GNU General Public Licence (GPL) requirements regarding code sharing remained unclear for government agencies.

Under the licence, developers are required to make source code for any works derived from a GPL-licensed product freely available if that product is distributed to other parties. Some government agencies are reluctant to see code which they have paid to develop released into the public domain, though they are generally happy to share such code with other federal or state agencies.

"As a rule of thumb, distribution amongst government departments is not a distribution [for the purposes of the GPL]," Fitzgerald said. However, he added that since each individual state in Australia has a separate constitutional status to the overall Commonwealth, it was not clear whether code shared between federal and state agencies should be subject to the GPL requirement to make source code freely available.

The federal government is keen to see more collaboration between state and national agencies. In a separate presentation at the conference, NOIE business strategies branch general manager Tony Judge cited the example of the national AusTender site, which is based around code developed for a NSW government agency.

Fitzgerald noted that while the GPL has yet to be legally tested in any jurisdiction, the fact that it relies on concepts such as 'derivative works' which are not defined in Australia's own copyright laws might raise some concerns.

"The GPL is a very unique regulatory structure that has worked very well to this point," Fitzgerald said. "If the Australian government wants to operate within that framework for its open source software, it needs to understand how it operates."

Nic Suzor from the QUT School of Law said developers could sidestep the state/federal issue issues by only releasing source code directly derived from GPL-licensed products, while keeping entirely software in separate packages and thus free from licensing constraints. In this way, code could be shared between federal and state agencies without raising concerns.