Help answer one of our members' question (SaaS)

I provided some background information, but mainly based US copyright law and our Work for Hire Doctrine. I'll leave this open for a few days to see if any of the other LWG members want to weigh in, but contract/copyright ownership conflicts really falls outside of the LWG's Charter.

IANAL, but I don't think this really has anything to do with Drupal's GPL policies or even the GPL license itself. This really isn't a code licensing question as much as work for hire/copyright ownership dispute and will depend almost entirely on language in the contract and where the client and agency are located. While you mentioned that the contract doesn't specify how an issue like this would be arbitrated, unless the contract specifies that the work done for the project must be licensed as GPL and distributed, there is no legal requirement in the GPL to do that.

See https://www.gnu.org/licenses/gpl-faq.html#GPLRequireSourcePostedPublic

The GPL does not require you to release your modified version, or any part of it. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization.

But if you release the modified version to the public in some way, the GPL requires you to make the modified source code available to the program's users, under the GPL.

Thus, the GPL gives permission to release the modified program in certain ways, and not in other ways; but the decision of whether to release it is up to you.

The GPL's requirements are only "triggered" by distribution Again, IANAL and we're getting into legal precedent now, but my understanding and the way agencies building solutions with Drupal and WordPress for the last ~20 years have largely operated is that an agency writing PHP for a module or theme for a client does not qualify as distribution. If it did, anyone with standing would be able to demand all module and theme source code for every Drupal and WordPress project.

If you read about the Work for Hire Doctrine in the US, you will see statements like this one from https://gct.law/news/Work-For-Hire-Doctrine-as-Protection-for-your-Software

in recent developments, courts have expanded the scope of the “work-for-hire” doctrine to include the independent contractors of the technology field, software developers.

Unfortunately for the client, unless their contract with the agency specifies that they own the code and/or the agency will provide access to it, this will probably have to be settled by the lawyers.

Unfortunately for the client, there is no contract between them and their service provider, so I guess we are definitely in the case you are referring.

Thanks you very much.

I am also a member of the LWG, and I agree with everything that kreynen wrote, including the point about contract/copyright ownership conflicts being outside of the LWG's Charter.

However, here is my two cents worth:

There is no doubt that the custom elements (modules and themes) of the website is a derivative work of Drupal, and therefore covered by the GPL.

There is no doubt that the custom elements developed by the agency are copyrighted works, and unless there is a contract transferring the copyright to the client, it will per Droit d'auteur by default belong to the creator (i.e. the agency).

The GPL does not in any way reassign copyright to a work. A work may be copyrighted, and also covered by the GPL.

The core question here is this: Does the GPL require the agency to distribute the source code of the custom elements of the website to your client? Unfortunately, the answer is "No". As pointed out by Kreynen, what "triggers" the access to the source code is distribution. If the agency provides a hosted solution incorporating these custom elements as a service, nothing is distributed and whatever the GPL says about the user's right to have access to the source code is moot.

This property of the GPL is well-known, and there exists the "Affero GPL" to eliminate it. See Why the Affero GPL for background.

IMHO, the GPL is irrelevant in the case you describe. It will not help the client to get access to the source code of the custom elements they have paid the agency to develop.

As pointed out by Kreynen, in the USA, there is the Work for Hire Doctrine that provides the entity hiring somebody to create IP with certain rights to the resulting work. A somewhat weaker version of this doctrine exists in my country (Norway) as non-statutory law. If the client want to pursue this route, they need to hire somebody that is expert on French IP-law to find out whether a similar doctrine exists in France. IMHO, trying to use the GPL to get access to source code in this particular situation is a dead end.

Fixed typo in title.