Joint Works

Open source prides itself on being a cooperative development process. Communities of engineers work together over the Internet to write software. In this way, they may create collective works. But they may also, without realizing the difference, create an entirely different kind of work: The result of collaborative development may become a joint work rather than a collective work .

A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. (17 U.S.C. § 101.)

Obviously, joint authors of a work don't have to collaborate on each word of the final product. They can divide their activities to create a unified work ”perhaps chapter by chapter, perhaps plot line by plot line, perhaps one writes the music and the other the words, perhaps they cooperate in more subtle ways. They may intentionally decide not to reveal which author did which portion of the work. Joint authors usually manifest their intent to create a joint work by documenting in a contract between them the specific relationship that they intend to forge while working together on the work. Proof that something is a joint work requires proof of the intention of the authors, but that proof isn't always easy to provide for the authors who contribute to informal open source projects.

There is a very important legal difference between a collective work and a joint work. Each contribution to a collective work is owned by its author, and that author has the exclusive right to decide how that contribution is to be licensed. A contribution to a joint work is owned by all of its authors jointly.

In the United States, unless they agree otherwise , each of the joint authors may separately license a joint work ”and all of its parts ”without the consent of any of the other joint authors, and every author must account to the other authors for their share of the profits derived from the license. Consult local law to determine whether one owner of a joint work may license without the consent of the others or must account to the others for his or her licensing revenue.

For most projects, whether the software is a collective work or a joint work will be unimportant as long as the contributors all continue to agree on a licensing strategy. Only when disagreements occur and the licensing strategy is to be changed ”what in open source circles is called relicensing ”does it matter how the parties formally agreed to collaborate.

Relicensing a joint work is, in some ways, easier than relicensing a collective work because any one of the authors can do it without consulting the others, but it may leave some contributors angry with the results.