Terciio Sampaio Ferraz Junior /
Juliano S. de A. Maranhao: Free Software and non-exclusive individual rights
Abstract: Free software introduces a
challenge to the classical conception of individual rights. The model of
software licensing given by the General Public License generates the question
whether it constitutes an exercise or a wavering of copyright. It is argued in
this paper that the later alternative is entrenched in the classical concept of
freedom as autonomy, which, by its turn, is reflected in a classical conception
of individual rights based on the model of propriety as a dominion over an
exclusive object (res). We provide grounds for a concept of non-exclusive
individual rights, based on the notion of freedom as reciprocity, in order to
obtain more solid legal foundations for the free licensing of software. The
concept of freedom as reciprocity and the corresponding reconstruction of
non-exclusive subjective rights achieved in this paper is an exercise in
general theory of law and thus may be applied to other legal fields where the
classical notion of freedom and the property of exclusivity do not fit
properly.
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