This section contains answers to questions likely to be frequently asked. Note that the following answers do not represent legal opinions.
What is the definition of free and open-source software?
Free and open-source software is software whose copyright owner grants others the freedom to use, examine, modify or distribute the software for any purpose whatsoever.
Why the need for a licence in the case of free and open-source software?
Software is a literary work protected by copyright, the same as a book. The Copyright Act (R.S.C., 1985, c. C-42) gives the copyright owner the exclusive prerogative of determining the conditions in which the owner’s work can be used, whether by reproduction, public performance or publication. That exclusive prerogative constitutes the copyright owner’s proprietary rights over the work.
For example, in the case of software or books, it is generally forbidden to reproduce and distribute copies, under penalty of civil or penal sanctions.
Hence, a licence is the instrument by which the copyright owner allows one or more persons to perform actions that would otherwise constitute copyright infringement. In the absence of a licence, software is considered proprietary, i.e. the copyright owner has elected to retain exclusivity over the proprietary rights to the work. This is why free and open-source software necessarily has to be accompanied by the grant of an interest, since exercise of the freedoms granted is contingent on the copyright.
Is there a difference between a licence for free and open-source software and a licence for proprietary software?
Proprietary software often comes with a « user licence » or an « end user licence agreement », also called a « proprietary licence ». Contrary to free and open-source software licences, so-called proprietary licences not only include stipulations aimed at preserving the exclusive rights of the copyright owners but, above all, incorporate contractual restrictions limiting the use made of the software. The main purpose of proprietary licences is to provide a framework for the use of tangible copies of the software. The term « licence » is therefore confusing, since proprietary software licences usually have nothing to do with copyright. In fact, proprietary software can very well be distributed by its copyright owner without any licence at all, without affecting the owner’s rights in any way whatsoever.
There are already a number of well-known free and open-source software licences. Why is the gouvernement du Québec offering its own licence?
True, the goal of distributing software in a free and open-source format could have been achieved through one of the licences currently used by the various free and open-source software communities. However, most of these licences are written in English, whereas Québec’s public administration is obliged to contract in French. In addition, the majority of these licences do not take into account the legal specificities of Québec’s civil law or Canada’s copyright law. The gouvernement du Québec therefore decided to draft its own licence.
How does the LiLiQ licence handle contributions?
Under section 5 of the LiLiQ licence, in the absence of any separate agreement, contributors to a project remain the copyright owner of the contribution. The contribution will be integrated into the project under the terms of the LiLiQ licence.
That being the case, the matter of contributions should be settled by the communities of practitioners and by the contributors. If a community demands assignment of the copyright, it should stipulate this in its constituent documents and ensure itself of the contributors’ consent, for example through a form enclosed with a contributor’s submittal. Naturally, a community can determine other copyright management rules.
Moreover, note that, unless otherwise specified, an employer is the copyright owner of the works of its employees. Similarly, unless otherwise specified, a service provider is the copyright owner of its work and that of its employees.
Is the LiLiQ licence recognized internationally?
Yes, the LiLiQ licence has been approved by the Open Source Initiative (OSI), a renowned international organization dedicated to the protection and promotion of free and open-source software . OSI approval ensures that licences comply with the Open Source Definition. The approval process was overseen by a committee of OSI experts and influential members of the international free and open-source software community.
Reference: https://opensource.org/licenses/category
Should I use the LiLiQ licence to publish my projects?
After deciding to release your software’s source code, you must choose one or more licences to publish it. Bodies that are part of Québec’s public administration are strongly recommended to use this licence, which fulfils the requirements of the applicable normative framework, while ensuring a certain uniformity in the licences related to software published by the various public bodies. We encourage businesses and individuals to use the LiLiQ licence because of its intrinsic qualities (simplicity and high compatibility with existing licences), and also because the law may oblige them to contract in French, a requirement which the LiLiQ licence naturally fulfils.
What is the meaning of « reciprocity » as used in the LiLiQ licence?
As seen above, a free and open-source software licence is a contract under which a person grants another person, the licensee, permission to exercise certain rights that would otherwise be reserved for the copyright owner. A reciprocal licence specifies that, on redistributing software, a licensee must grant the same rights as those received. This method ensures that the software will remain free and open-source. For example, if someone modifies software distributed under the terms of a reciprocal licence, that person must grant a licence in the same terms to every person to whom the modified software is distributed. Another expression currently used to characterize such licences is « copyleft ». Lastly, this obligation only applies where software is actually distributed. Making private copies or copies within a single business is not usually considered to trigger the reciprocity obligation.
There are three versions of the LiLiQ licence: which one should I adopt to publish my project?
To ensure that the main scenarios for the development of free and open-source software within the gouvernement du Québec are covered, the LiLiQ licence was developed in three versions that differ in their level of reciprocity:
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LiLiQ-P is permissive, without any reciprocity obligation. Therefore, a licensee can modify and distribute software under LiLiQ-P without any obligation to disclose the source code or to preserve the free and open nature of the software. Comparable licence: Apache.
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The two other versions of the licence, i.e. LiLiQ-R (reciprocity) and LiLiQ-R+ (strong reciprocity) seek to preserve, at different levels, the free and open nature of the software they cover. Thus, anyone who modifies and distributes such software is required to do so in accordance with LiLiQ specifications and to allow access to its source code. Comparable licences: MPL, LGPL for LiLiQ-R and GPL for LiLiQ-R+.
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As is the case for other reciprocal free and open-source licences, LiLiQ-R and LiLiQ-R+ include a so-called compatibility clause, which allows a licensee, under certain conditions, to combine a LiLiQ-subject software with software subject to other free and open-source reciprocal licences. In this regard, LiLiQ is innovative through its liberal compatibility clause that tries to cover the greatest possible number of free and open-source licences.
The LiLiQ-R and LiLiQ-R+ licences differ in their level of reciprocity. Whereas LiLiQ-R seeks to preserve the free and open-source nature of every modified software, LiLiQ-R+ additionally seeks to preserve the nature of any derived software.
My project contains third-party code: how is code published under another licence integrated?
If third-party code is published under a permissive licence, integration of the code into a project published under the LiLiQ licence usually does not present any problem. The terms of the licence under which the third-party code is published must be examined and care must be taken to abide by the conditions it stipulates. In most cases, all that is required is to provide a note indicating that the third-party code has been integrated into the project and a copy of the licence under which the third-party code is published.
If the third-party code is published under a reciprocal licence (such as GNU GPL), there are two possibilities. Permission may be requested from the copyright owner to grant an interest in accordance with the terms of the LiLiQ licence. Otherwise, the project must be published under the terms of the third-party code licence. Note that certain licences could allow such integration through compatibility clauses.
| End-use licence | Original licence | Integration of the code published under the original licence into a project published under the LiLiQ licence |
|---|---|---|
| LiLiQ-P | Proprietary software | Integration impossible, except with permission |
| Permissive licence | Integration possible | |
| Reciprocal licence | Integration impossible, except with permission | |
| LiLiQ-R | Proprietary software | Integration impossible, except with permission |
| Permissive licence | Integration possible | |
| Reciprocal licence | Integration impossible, except with permission | |
| LiLiQ-R+ | Proprietary software | Integration impossible, except with permission |
| Permissive licence | Integration possible | |
| Reciprocal licence | Integration impossible, except with permission |
How do I integrate project code published under the LiLiQ licence into a project published under another licence?
Code published under the LiLiQ-P licence can be integrated at all times into a free and open-source project or a proprietary project simply by ensuring that the conditions mentioned in section 4 of the licence are abided by (basically, provide the text of the licence, necessarily mention all modifications, and not remove copyright notices).
As concerns the LiLiQ-R and LiLiQ-R+ licences, it is not possible to integrate code published under these licences into proprietary software or software published under a permissive licence. It is possible, however, to integrate code published under the LiLiQ-R or LiLiQ-R+ licences into software published under reciprocal licences, to the extent that the level of reciprocity of the licences is comparable or greater. In such a case, the terms of the compatible licence will apply, as long as the two software programs are combined.
| Original licence | End-use licence | Integration of the code published under the original licence into a project published under the LiLiQ licence |
|---|---|---|
| LiLiQ-P | Proprietary software | Integration possible |
| Permissive licence | Integration possible | |
| Reciprocal licence | Integration possible | |
| LiLiQ-R | Proprietary software | Integration impossible |
| Permissive licence | Integration impossible | |
| Reciprocal licence | Integration possible for reciprocal or strong reciprocity licences | |
| LiLiQ-R+ | Proprietary software | Integration impossible |
| Permissive licence | Integration impossible | |
| Reciprocal licence | Integration possible for strong reciprocity licences |
Technically, how can software be published under the terms of the LiLiQ licence?
A copy of the LiLiQ version that applies to your project must be included in a conspicuous location. In general, the licence is included in a file named LICENCE or LICENSE, and a file named LISEZMOI or README refers to the licence file.
Ideally, a copyright notice should be included in each file and should specify that the software is distributed under the terms of the LiLiQ licence. For example:
/*
* Copyright (c) 2018 Gouvernement du Québec
*
* SPDX-License-Identifier: LiLiQ-Rplus-1.1
* License-Filename: LICENSES/LiLiQ-P11unicode.txt
*/
Can an organization or business sell copies of software published under the terms of the LiLiQ licence?
It is perfectly feasible to sell copies of software published under the terms of the LiLiQ licence, regardless of the licence version. However, the seller is obliged to redistribute the source code to the buyer if the software is published under the terms of either the LiLiQ-R or LiLiQ-R+ versions. The buyer can then make copies of the software and distribute it to other persons without the seller’s permission being necessary. A buyer who distributes copies of such software may sell it, but may also distribute it free of charge.
What are my recourses if I consider that the licence terms have been violated by a third party?
Section 9 of the licence stipulates that it is terminated as of right if the rights it grants are not exercised under the terms of the licence. It also provides that a person in default has 30 days to remedy the failure after its discovery, in the case of a first failure.
We recommend that the person in default be contacted as soon as possible and be prompted to remedy the failure. Ultimately, if the failure is not remedied, the violation of the LiLiQ licence must be considered a copyright infringement and must be treated as such. Legal proceedings for infringement of copyright are therefore possible.
Is the LiLiQ licence likely to evolve over time?
The LiLiQ licence may evolve over time, or other versions of it may be made available, according to the needs expressed. However, a new licence version does not invalidate the previous version. Software subject to the terms of a specific version is not affected by the arrival of a new version. But it is possible, on publishing the software, to include a notice stating that it is distributed under the terms of the current version or any subsequent version. In such a case, a licensee can choose which version of the licence is granted to it him.
What is the difference between modified software and derived software?
The LiLiQ-R and LiLiQ-R+ licences differ in their level of reciprocity. LiLiQ-R seeks to preserve the free and open-source nature of every modified software, whereas LiLiQ-R+ also seeks to preserve the nature of every derived software.
a) The LiLiQ licence defines modified software as « any modification made by a licensee to one of the software’s source code files, or any new source code file that integrates the software or a substantial part of it ».
Thus, any new source code file that does not integrate the software or a substantial part of it is not covered by the notion of modified software. The corresponding source code does not have to be distributed under the terms of the LiLiQ-R licence. For example, a complementary module could be distributed under the terms of another free and open-source licence, or it could be distributed without any particular licence and thus be considered as proprietary software.
Under the LiLiQ-R licence, any modified software must be distributed under the terms of the licence. The corresponding source code must also be distributed.
b) The LiLiQ licence defines derived software as « any original software developed by a licensee, other than the software or modified software, that produces or reproduces all or a substantial part of the software ».
Under the LiLiQ-R+ licence, any modified software or derived software must be distributed under the terms of the licence. The corresponding source code must also be distributed.
The concept of derived software goes further than that of modified software. It rests entirely on the copyright notion of a derivative work. The Copyright Act, R.S.C., 1985, c. C-42, does not give a precise definition of what constitutes a derivative work. However, the Supreme Court of Canada has determined that the exclusive right to “produce or reproduce the work . . . in any material form whatever . . . confers on artists and authors the exclusive right to control the preparation of derivative works » (Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 SCR 336, 2002 SCC 34, para. 73).
The Court indicated, though, that the concept of a derivative work is less far-reaching in Canada than in the United States, since U.S. statutes explicitly state what may constitute a derivative work.
That being the case, the definition of derived software is based on the exclusive right of reproduction, as stated by the Supreme Court when it attempted to define what may be a derivative work under Canadian law. Reproduction need not necessarily be mechanical or literal. Derived software must be an original work that includes substantial aspects of pre-existing software. The question to be asked is whether essential features of one software are contained in another software. Among other things, this could involve improvements other than those covered by the concept of modified software, such as new source code files.
Ultimately, the question is always that of deciding whether software reproduces all or a substantial part of another software subject to the terms of the LiLiQ-R+ licence. Note that a person who distributes software that is not a work derived from software distributed under the terms of the LiLiQ-R+ licence is not required to distribute the software under those terms. In other words, if software cannot be considered as derived from other software for copyright purposes, neither can it be considered as such under the terms of the LiLiQ-R+ licence. The LiLiQ-R+ licence bases itself entirely on copyright law to determine whether one software is derived from another.
In addition, the software must reproduce the software distributed under the terms of the LiLiQ-R+ licence. Distributing two software programs on a single medium does not mean that they are necessarily derived one from the other. This is merely a compilation of separate works. The LiLiQ-R+ licence allows reproduction and distribution of software as long as the source code is also distributed. This does not mean that the source code of software programs that are part of a single compilation has to be distributed. In the case of a compilation, the software does not reproduce the software distributed under the terms of the LiLiQ-R+ licence.
The fact that two software programs are related, either statically or dynamically, does not in itself mean that they become software derived one from the other. In other words, the way in which two software programs may interact or communicate does not necessarily make it possible to determine whether one is derived from the other.
Can software developed in a proprietary environment (for example, C# or Visual Basic) be published under the LiLiQ licence?
Yes. The resultant software is a work that is completely independent from the tool that was used for its development.