The licence - a civil contract

The open-source licence that we developed is a “sui generis contract” and falls under the General Business Terms and Conditions of German Civil Law (BGB). This can be regarded as a general terms of service because it is stipulated by a single party, is not individually negotiated, and is intended for use in multiple transactions. A basic feature of the open source seed licence is that the user receives, free of charge, a simple use right on the condition that he or she makes available for public use, under the same conditions, any development or enhancement to the seed that he or she may have made.

Disclosure of the licence

The licence is a civil contract. Such contracts may be made verbally, in writing or implicitly through actions. If you want to sell, give away or exchange seeds under the open-source seed licence, you must – unambiguously – disclose the licence conditions of the transfer. Paragraph § 305 II BGB (the German Civil Code) states that the licensor (the issuer of the general terms of service) must expressly point out to the other party (the licensee) the terms and conditions of the licence and provide the possibility for the licensee to peruse these terms and conditions in order to reasonably comprehend them. In addition, the licensee must agree to their validity.

This means that any transfer is valid only if the licensee is fully aware of the terms and conditions of the licence. For this purpose, an abridged version with reference to the online, full-text version is sufficient.

For professional traders, who for instance sell seeds in small quantities in supermarkets or garden centres, it means that an abridged version of the open-source seed licence must be printed on the wrapping of the seeds with reference to the online, full-text version. For individuals (farmers etc.), the licensors must ensure that a copy of the licence accompanies the materials being transferred; they must explicitly inform the recipient (the licensee) of the materials about the terms and conditions of the open-source seed licence.