University must make source code public but copyright still holds

10 December 2004

Jim Runsten, Hubert Best

The Swedish Supreme Administrative Court has ruled that source code owned by a public authority must be released due to Swedish freedom of information legislation.

The case concerned a computer program developed by Stockholm University that facilitates administrative procedures within the Department of Economics. The development of the computer program had been funded by government grants, but in order to recoup the money and invest it in other projects the software was also licensed to another university.

Under the Freedom of Information Law, which provides for a right to access publicly produced documents unless there is an issue of confidentiality, a request for the source code to the computer program to be released was made. The university denied the request and the requesting party appealed to the court.

Both parties agreed that the general rule of public access was applicable, so the question was whether the information could be kept confidential by virtue of it coming under the university's business activities. In order to be covered by the confidentiality rule, it must be shown that there is a profit-seeking business and that the activities, despite being those of a public authority, are not governed solely by public law.

The court concluded that as the computer program was used as a tool for administrative procedures within the university, it could not claim confidentiality based on the business activity of selling computer programs. The fact that one copy of the program had been licensed did not change this fact. The court therefore decided that the source code should be released.

The court's ruling was explicitly without prejudice to the copyright that subsists in the program. Therefore, the party to whom the source code of the program is released would not be entitled to perform any copyright-restricted act in relation to the material without the university's consent. Further, neither the Swedish private-copying exception nor the exception that permits copying for educational purposes applies to computer programs.