Most businesses meet this decision without warning. A developer drops a popular open-source library into the product a week before launch. A designer finds the perfect Creative Commons image for the new website. Someone asks what licence your own software ships under, and no one has an answer. These are all the same decision: whether your work stays under your exclusive control, or whether it is released on terms that let others use, modify and redistribute it. The choice looks reversible. In practice, once copyleft obligations have attached to software you have distributed, reversing course can mean relicensing, re-engineering or a full rebuild.
The real question behind "copyleft vs copyright"
Copyleft is not a law, and it is not an alternative to copyright. Every copyleft licence is built on copyright. It takes the exclusive rights that the Copyright Act 1968 (Cth) gives the owner and grants them to the public on conditions. The central condition is reciprocity: if you distribute a modified or combined version of a copyleft work, you must licence that derivative under the same terms, so the freedoms travel with it. That is why copyleft licences are often described as viral or reciprocal.
So the real question is not "copyleft or copyright?" It is: which licensing approach fits how your business makes money, and which obligations are you willing to carry? In practice there are four options:
- Proprietary: keep the work closed and licence it on written terms you control, for example a software licence agreement or an end-user licence agreement.
- Permissive open source: release code under a licence such as MIT, Apache or BSD, or content under Creative Commons attribution licences like CC BY, which allow reuse in proprietary products with minimal conditions.
- Copyleft: release under the GNU GPL family for software, or Creative Commons ShareAlike licences (CC BY-SA, CC BY-NC-SA) for content, so derivatives must stay open.
- Dual licensing: publish under a copyleft licence for the community while offering a paid commercial licence to customers who want to combine the work into proprietary products.
Two misconceptions cause most of the confusion. Open source is not the same as no obligations, and copyleft is not the same as public domain. Public domain works carry no copyright restrictions at all. Copyleft works are protected by copyright and come with conditions that a business must actively meet.
Factors to weigh before you choose
Five factors do most of the work in this decision. Working through them before you commit to a licence will save you from the expensive surprises later.
What kind of asset you are licensing
Copyright in Australia protects original literary, dramatic, musical and artistic works, and it arises automatically. As IP Australia explains, copyright does not require formal registration and protection generally starts automatically once the material is created. Source code is protected as a literary work, and the copyleft tools that matter for code are the GNU licences: the GPL, the Lesser GPL (LGPL) and the Affero GPL (AGPL). For text, images, videos and other creative content, the copyleft option is the Creative Commons ShareAlike family, chiefly CC BY-SA and CC BY-NC-SA.
Design files, brand assets and trade secrets sit outside both families. They are usually handled with bespoke licence agreements, because the business case for keeping them proprietary is stronger. Match the licence family to the asset type, and do not assume that a licence that works for software makes sense for content.
How your business makes money
Your revenue model should drive the licence choice, not the other way around. The three main paths are:
- Proprietary: suits a business that monetises by selling licences, subscriptions or exclusive access. Keeping the code or content closed preserves the competitive advantage that customers pay for.
- Permissive open source: suits a business that monetises services, hosting, support or premium add-ons. Maximum adoption grows your ecosystem, and users can incorporate your code into proprietary products, usually with attribution and notice requirements.
- Copyleft: suits a business that wants improvements to stay open and is willing to comply with reciprocal obligations. It attracts community contributions and builds trust, but it constrains how your own derivatives can be commercialised.
Dual licensing is the hybrid path: the copyleft version drives adoption, and the commercial licence lets paying customers avoid share-alike obligations. It works, but it needs disciplined contributor workflows, because anyone who contributes code may hold rights in it.
Whether, and how, you distribute the work
This is the threshold where copyleft obligations switch on. Under the GPL, the obligations are triggered by distributing or conveying the software to others: shipping binaries, offering downloads or embedding the code in devices you sell. As the Software Freedom Law Centre's guide to GPL compliance explains, a business that uses GPL code purely internally, without conveying it to anyone, is generally not required to release its source code.
The LGPL is the deliberate softening of this rule. It allows a proprietary program to link to an LGPL library and keep the rest of the program under your own licence terms, provided the library itself stays available under the LGPL and can be replaced. That makes it a common middle ground for commercial software that wants to use shared infrastructure without opening the whole product.
The AGPL closes the remaining gap for software as a service. Under the AGPL-3.0, if users interact with your modified software over a network, you must make the corresponding source code available to them, even though you never distributed anything. For a SaaS business, that can be the single most important licence detail in the whole stack.
For content, the equivalent trigger is sharing an adaptation. Under the Creative Commons ShareAlike terms, if you share an adapted version of a CC BY-SA work, you must licence it under the same or a compatible licence, with attribution to the original author. Australian law reinforces the attribution point: Part IX of the Copyright Act 1968 (Cth) gives authors a right of attribution, so crediting creators is both a licence condition and consistent with our moral rights regime.
What you build with someone else's code
Most copyleft trouble comes from how your product is put together, not from the licence of the top-level package. Whether your product is a derivative work (which triggers share-alike obligations) or a collective work (which may not) depends on how the components interact. Static linking, dynamic linking, API calls and microservices each raise different questions, and the answers are technical as well as legal.
Attribution and licence notices are the most commonly missed obligations, and they are also the cheapest to get right. Most copyleft licences require you to retain the original copyright notices and licence text, and to credit authors when you distribute the work or a derivative. For Creative Commons content, that means naming the author, identifying the licence and linking to the licence page. Getting these details wrong is rarely fatal on its own, but a breach notice, a takedown request or a dispute over your right to keep distributing the product can be, and that is where the real cost lands.
Two practical problems compound this. The first is transitive dependencies: checking only the licence of the library you chose, and missing the obligations carried by the libraries it depends on. The second is unwinding: a copyleft component embedded deep in a proprietary product is difficult and expensive to remove once the product has shipped. Software composition analysis tools and a bill of materials that records each component, its version and its licence text will tell you what you are actually carrying. Bear in mind too that the GPL itself forbids adding further restrictions on top of it, so you generally cannot contract your way around the obligations with a customer.
Whether you actually own the rights you are licensing
Ownership comes before licensing, because you cannot licence out rights you do not hold. Under s 35 of the Copyright Act 1968 (Cth), the author is the first owner of copyright in a work, but with an important exception: where an employee creates a work in the course of employment under a contract of service, the employer owns the copyright, unless the parties agree otherwise. A further default covers photographs, portraits and engravings commissioned for a private or domestic purpose: the commissioner owns the copyright, not the photographer or artist. Outside that narrow carve-out, commissioned work stays with its creator.
That default does not extend to contractors and freelancers. If a contractor builds your website, writes your code or designs your packaging, copyright stays with them unless you have a written assignment.
That paperwork is not optional. An assignment of copyright does not take effect unless it is in writing and signed by or on behalf of the assignor, under s 196 of the Copyright Act 1968 (Cth). A verbal promise, an invoice note or an email chain will not do. Businesses that skip this step discover it only when they try to licence out, sell or enforce rights they assumed they owned, or when a contractor reappears years later claiming ownership of the product.
How an Artificer Legal licensing review helps you make the call
A licensing lawyer's job at this decision point is to turn the uncertainty into a map. An Artificer Legal practitioner would start by stress-testing the assumptions behind your plan: is that library really GPL, or is it MIT with a GPL-compatible dependency? Does your SaaS offering actually trigger the AGPL's network clause, or does the modified code sit behind an API that does not? Is your product a derivative work or a collective work? These are the questions that determine whether your obligations are live.
From there, a review models the downside of each path. Forced disclosure of source code, a breach notice, a takedown, or a competitor free-riding on the work you released under the wrong licence: each outcome has a cost, and knowing that cost before you commit changes the decision. If you are already deep in development, the review maps which components can stay, which need a commercial licence from the rights holder, and which must be replaced.
Finally, a lawyer drafts the documents the chosen path needs: IP assignments from contractors and contributors so ownership is settled in writing, copyright licence agreements and software licence agreements or EULAs for proprietary products, contributor agreements for dual licensing, and website terms that set out how visitors may use your content. The documents are not the point of the exercise on their own. They are how you make the licence decision real.
Ownership and distribution come before the licence choice
The detail most businesses miss is that the copyleft question only becomes expensive at the moment of distribution. You can run internal-only for years, then launch a product, ship an app or offer a SaaS service, and switch on obligations across your whole stack without noticing. The cheapest time to make the licensing decision is before you build, and the second cheapest is before you ship. A short review at either point is far less costly than a relicensing exercise, a rebuild or a dispute after a breach notice arrives.
To summarise: copyright in Australia is automatic and unregistered, and gives the owner exclusive rights to reproduce, publish, communicate and adapt a work. Copyleft is a licensing strategy that uses those rights to require share-alike treatment for derivatives, and the obligations it creates are triggered by distribution for the GPL, by network interaction for the AGPL, and by sharing adaptations for Creative Commons ShareAlike works. Weigh your asset type, your revenue model, your distribution plans, your dependency stack and your ownership paperwork, and get tailored advice before you commit. The licence you choose is a commercial strategy, and it deserves the same care as the rest of your business plan.