Tay Pek San

Legal Issues on Free Software and License Contracts: A Malaysian Perspective

This chapter discusses the legal issues surrounding the use of free software and license contracts in Malaysia. More specifically, the legal issues are explored from the standpoint of two main areas of law, namely, contract law and intellectual property law with particular focus on copyright. In addition, aspects of competition law and public procurement law are also examined broadly. Insofar as contract law is concerned, license contracts pertaining to free software must meet the requirements for the formation of contract and must not contain terms which are unfair to consumers. Where ambiguity arises, the court will apply the established rules on interpretation of contracts to determine objectively what the parties had intended. Copyright law confers a bundle of exclusive rights on the copyright owner and, accordingly, the mere use of a program without license amounts to an infringement of copyright. Licensees of free software must ensure that any license given to them to use the software should specifically cover the intended use. In addition, as all types of use of software involve the making of a copy of the program, a licensee should also secure permission to make a reproduction of the program. The discussion in the chapter suggests that although Malaysia does not have any specific statutory provisions governing the use of free software and license contracts pertaining to such software, these areas of Malaysian law are sufficiently broad to address issues and possible conflicts arising from the use of free software and license contracts.