IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called into question.
Here, Anton Hughes discusses collaboration and considers the role of the open-source movement in a world still governed largely by copyright and patents.
Open source began in the late 1970s and early 80s as a way of preserving the sharing ethos upon which early computer science was built. Since then it has grown well beyond its original scope, and now underscores the creation of many creative works.
Patent law is also directed towards a similar end, but encourages individuals rather than groups. So does the success of open source suggest patent law, as we know it, is set to change?
How does open source work?
Software’s source code (the lines of code that make up the software) is both the “machine” that makes it work, and the instruction manual for that machine. As such it is a source of great value. But should this source code be kept under lock and key or shared with others?
Open-source software advocates take the latter view. By sharing source code with others, it’s possible to create a collaborative development ecosystem.
The Open Source Institute asserts that the benefits flowing to software products from this collaborative approach are “better quality, higher reliability, more flexibility, lower cost, and an end to predatory vendor lock-in”.
A certain “section” of the open-source movement, free software advocates, argues for the sharing of source code not because these ends justify the means, but on ethical grounds. They say society ought to encourage the voluntary co-operation of its citizens, and that “co-operation is more important than copyright”.
Open source, in practice
Successful open-source software products abound but the movement’s poster child is probably the Linux kernel, a project started in 1991 by Finnish software engineer Linus Torvalds.
The Linux kernel is part of a larger bundle of free and open source “GNU/Linux distributions”, such as Ubuntu and RedHat. These distributions are operating systems in their own right and are free alternatives to Windows and OSX.
Although these GNU/Linux distributions only have about 1% market share, Linux has a significant presence in government, educational and business markets. Familiar websites such as Google, Amazon, and Wikipedia all rely on GNU/Linux.
But it’s not just in the operating system that open source dominates the web. The open source Apache web server is behind about 64% of all websites, with another 9% run by the open source nginx server.
(GNU/)Linux is just the “L” in the popular LAMP stack – a bundle of open-source products frequently used in web development. The remaining letters in LAMP refer to the aforementioned Apache web server, the MySQL database engine, and programming languages PHP, Perl or Python respectively.
Beyond the web
But open-source software isn’t limited to web development. If there’s a piece of computer software you use on a daily basis, there’s almost certainly an open-source (and therefore free) version available as well.
Need a web browser? Try Firefox or Chromium. Sick of paying hundreds of dollars for Microsoft Office? Try LibreOffice or OpenOffice or AbiWord. Want to edit photos without paying for Photoshop? Try the GNU Image Manipulation Program (GIMP).
You might even be carrying open-source software in your pocket. The Linux kernel is at the heart of Android – the open-source mobile phone operating system that runs so many smartphones and tablets, including the Samsung Galaxy Tab.
Given the success of open-source projects, it’s no surprise the open-source software model has been adopted within a range of non-software domains.
This is typically in areas where there is some equivalent “source”, or know-how which would otherwise be protected through traditional copyright. In the case of open source, sharing of this know-how is not only allowed – it is encouraged.
Creative Commons:
Creative Commons licences (under which this article and all others on The Conversation are published), grant a range of creative freedoms to literary, and other “artistic” works traditionally published under copyright.
Despite some resistance from publishers – who are quite happy with traditional copyright – the benefits to authors (such as notably increased dissemination) are leading to pressure, especially among the academic community, to “tear down the walls”.
Similar initiatives exist to open up data stored in government/public repositories.
Open Hardware:
Given the inter-reliance of software and hardware, it’s natural that an open-source approach has caught on in electronics. It’s a different creature to open-source software because the hardware itself is already available for anyone to look at.
The “open source” part refers to information about the hardware that would be needed to reverse-engineer the hardware, such as the circuit layouts, the components used and any software embedded in the devices.
Perhaps the biggest success in this context is the Arduino micro-controller – essentially an open-source computer circuit board – of which more than 300,000 units have been sold. Other examples abound, including open-source agricultural equipment and open-source DNA analysis equipment.
Open-source patents?
Given its origins as a liberalisation of the copyright paradigm, speaking about open source in the patent context is tricky. While copyright protection is automatic, and free, getting a patent is a slow and expensive process. The pragmatic critic might question why anyone would invest in such a process, only to give free access to everyone else.
But if we think of open source, as Janet Hope, author of The Open Source Revolution and Biotechnology suggests, as “the basis for an analogy – the seed of an idea rather than a rigid formula for success", possibilities begin to emerge.
Rather than trying to graft “copyleft” (making a work and its derivatives free) on to patent law, it might be possible to work within patent law to promote collaborative innovation.
Software is seen by many, including open-source advocates, as an inappropriate subject matter for patents. Attempts to reconcile patent law and open source software – such as the Open Invention Network – have therefore largely been directed towards defending copyleft, rather than exploring a new patent-based paradigm.
But there are concrete examples of attempts to create collaboration mechanisms within patent law. For a start, the aviation industry has used patent pooling to promote collaboration since before the first world war. More recently, there have been a number of attempts to adapt the open source approach to the patent-rich landscape of biotechnology.
So while patent law is currently without a “patent source” poster-child, the growth of the open source phenomenon suggests that such success may be only a matter of time.
This is part six of Ideas and Ownership. To read the other instalments, click on the links below:
Nicholas Sheppard
Computer Scientist & Teacher
As I understand it, an inventor can make an invention freely available by simply publishing it. Once the invention has been published, no one can take out a patent on it, and everyone can use it as they see fit. The patent office need never get involved.
I think the deeper question is: why would an inventor spend all this time to develop a good invention, only to give it away for free?
Open source software might have some suggestions. Much of it is developed in pubicly-funded institutions like universities; some in companies that make money on supporting the software (e.g. Red Hat); some by hobbyists; and so on. But working out how this might (or might not) translate to patentable inventions is, as they say, outside the scope of this comment.
Ger Groeneveld
logged in via LinkedIn
Inventions are 1% inspiration and 99% hard work. Why not share the inspiration if the expectation of earning something from it are minimal. If using open software source code, you are supposed to leave the name of the originator in the code.
Stephen Prowse
logged in via LinkedIn
While I think the notion of enhancing collaboration and sharing research is to be applauded, the cost of developing medical products remains a barrier. The development of a medical device or drug takes about 10-15 years and costs $100-$500 million. A company that invests in this process has to recover this cost plus the costs of the investments that failed to deliver a product; otherwise they will not be in business. It would be very interesting to see an article in this series that explores a workable alternative model to patent protection in the biotechnology/biomedical arena that takes into account the substantial development costs. As an example it could be interesting to explore the whole of product life, public expenditure in the development and sale of a new drug that includes public subsidy of the drug through schemes such as the PBS.
There is already considerable joint development of products in the biotechnology arena as a way of sharing the risk and cost.
k d
logged in via Twitter
Nicholas: Large and small companies get huge economies of scale by using and contributing to open source software as well. By large companies I mean huge entities like Google, Apple, Oracle, Cisco and others. In fact Google's entire business strategy revolves around using open source infrastructure, and Apple's resurrection was in large part helped by their use of <a href="http://en.wikipedia.org/wiki/BSD_licenses">BSD licenced</a> code.
Con Zymaris
Untethered Polymath
Anton,
a clarification.
Your comment here:
They say society ought to encourage the voluntary co-operation of its citizens,
and that “co-operation is more important than copyright”.
would seem to imply that open source software eschews copyright.
In fact, the primary free and open source software licences, such as the GPL ( http://www.gnu.org/copyleft/gpl.html ), are underpinned by strong copyright law.
What the GPL does is extend the rights available to users of copyrighted…
Read moreAnton Hughes
PhD Graduate at University of Tasmania
Hi Con,
My apologies to anyone who was mislead by that statement. I would hope it is clear from the article overall though, that copyright has to be *modified*, not eschewed, in order to achieve the co-operative goals of open source. I would hope that this is clear from my discussion of copyleft, and also the exploration of "patent source" at the end of the article.
Anton