Legal Corner: MIA or Dead Contributors - Does It Matter For Your Software Project?
If your software project operates on multiple contributions, and a contributor becomes uncontactable or passes away, this can become an issue in certain situations. Here we’ll discuss when a missing or deceased contributor affects your software project, and what options you have.
Which contributions are copyrightable?
Before anything, when is a contribution copyrightable in the first place? Commonly, software projects that are hosted on popular hosting websites, such as GitHub, GitLab, BitBucket etc, often encompass contributions by multiple contributors. Nevertheless, as only “creative works” can be copyrighted, the extent to which the contribution can be regarded as a “creative work” can be a bit tricky to ascertain. The length of the contribution does not matter because short contributions can also be creative.
Primarily, anything that is accepted as a change into the source code, and modifies the source code can constitute a creative work that is copyrightable. This is the case even if they are minor or small changes; even single line bug fixes with a creative scope is a contribution that falls into this category.
On the other hand, non-source code contributions, such as translations, documentation, or configuration files can be commonly made available in the public domain, or even regarded as insignificant changes outside of the scope of the applicable Free Software license. Nevertheless, to err on the side of caution, the safest approach is to assume whenever in doubt that a contribution is a copyrightable contribution, and act accordingly.
When do you need to get in contact with a contributor?
Generally, you would need to get in touch with a contributor to your project whenever you wish to enact some kind of major change to the overall project. The most common situation for this would be where a project runner intends to re-license the project.
If you need to make such a change, your first step should be to compile a list of all contributions that are copyrightable, as well as their respective contributors. You should then obtain consent for all copyrightable contributions, including those of deceased or otherwise uncontactable contributors.
The reason that you need to do this is that software enjoys copyright protection from the instant that is created. This means that a contributor by default has copyright over their contribution, and does not need any additional steps to protect their work under copyright. There are of course exceptions to this, most notably when the contributor has effectively transferred their copyrights over the contribution to you or your project, making you or your project the copyright holder.
What happens if the contributor has passed away?
Generally, copyright law provides that ownership of the copyright remains with the contributor even after death. In most EU jurisdictions, this means that copyright lasts for 70 years after the death of the author, or in the case of joint authorship, after the death of the the last surviving author. Once this 70-year term expires, the work will enter into the public domain, where others may use the work for commercial purposes without requesting any authorization or license.
Copyright is considered to be personal property, and therefore copyright ownership can be included in a will, and passed on to another person upon the copyright holder’s death. Accordingly, you should inquire with the deceased contributor's estate to see who the copyright has passed onto and seek their consent before making any changes to the project that require the consent of all contributors. In the event that there is no specific provision for who takes ownership of the copyright of software contributions in the will, the rights will be passed along in accordance with the national laws of intestacy where the contributor was residing in.
Regardless of whether or not the ownership of the deceased’s copyright in the project was covered in a will, the new copyright owner(s) would now be the people that you have to obtain your consent from. Nevertheless, please remember when doing so to always be respectful and sensitive in such communications. Losing a loved one is a difficult enough thing to go through, and many relatives will not want to be contacted too soon after the death of their loved one with questions about contributions.
Looking for help with established platforms or software foundations
If your project is hosted online on a popular code repository hosting
platform, you should check to see if they have any policies for deceased
or absentee contributors. As an example, GitHub has a Deceased User
Policy.
This policy is written primarily to allow GitHub to work with authorized
persons in the deceased's estate to determine what to do with the
deceased’s GitHub account. It is also useful for next of kin,
pre-designated successors, or other authorized individuals (which could
include a collaborator or business partner) of a deceased user, to be
able to gain control over a deceased user’s account.
It could also be useful to send a request to other popular foundations
such as the Apache Software Foundation, the Mozilla Foundation, or the
Linux Foundation inquiring about the status of the deceased developer's
account, as some developers have adopted the practice of willing
contributions to Free Software foundations.
What happens if you can’t contact a contributor or their heirs?
If obtaining the consent of a contributor or their estate has turned out to be impossible, one practical recourse would be to fork the project repository, while moving the contribution(s) of the missing contributor(s) to stay under the original. A good practice when taking this course of action would be to credit previous contributors who have created the original program from which the fork is carved out. Therefore, if all efforts fail to trace and contact the missing contributor(s), you can at least point to some form of attribution to mitigate any potential complications down the line.
Another practical option that many project runners frequently take would be to ignore the deceased and/or missing contributor(s) and their contributions altogether. While this is not strictly the correct legal approach, it is nonetheless a practical one that allows projects to move forward with their plans. Software project that go down this route do so after a thorough risk assessment, more specifically, after analyzing (1) the significance of the contribution in question; (2) the likelihood of the contributor or their estate contesting the decisions of the project, based on their ownership of the copyright over the contributions; and (3) the likelihood of success of any such contestation.
In many cases, project runners may come to the conclusion that the risk of the missing/deceased contributor showing up to assert the rights of their ownership of the contribution is small enough, such that moving forward without the explicit consent of that particular contributor or their estate is worth the risk.
We hope that this has been useful for your understanding of managing this particular legal issue within a software project.