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CHAPTER 2.6

Open Source Licensing

Janet Hope, Project Director, Co-operative Intellectual Management, Centre for Governance of Knowledge and Development, Research School of Social Sciences, Australian National University, Australia

ABSTRACT This chapter provides an introduction to In fact, the only context in which the term software licensing. The chapter seeks to demystify the open source has a generally accepted definition is concept of open source so that (IP) 1 owners and managers can decide whether an open source in software development. This chapter uses the approach is worth pursuing. The chapter explains the term in as far as possible the same sense as it is principles of free and open source software licensing and used in the software context but suggests that the outlines the decisions that an innovator must make when underlying IP management approach could be deciding which strategy to use for developing a new in- novation. Also explained are the differences between open applied in other contexts. source and public domain, and between the uses of the Conventional software development is some- terms and academic to describe open source li- times termed cathedral building because it pro- censes, as well as the incentives (financial and otherwise) ceeds according to the hierarchical directions of for open source licensing. Finally, the author identifies one or more software architects (the word archi- important considerations regarding the possibilities for open source licensing in fields other than software de- tect is derived from words meaning “chief build- velopment, particularly biomedicine and agricultural er”). Conventional software is usually protected biotechnology. through IP rights, as a strategy to exclude some or all prospective users of the technology. By contrast, open source software develop- 1. Introduction ment projects, such as those that produced , Open source software has had remarkable tech- Apache, and BIND, are decentralized and self-or- nological and commercial success. Since the late ganized. Open source software development is an 1990s, many people have been interested in ap- evolutionary process: the contributions of self-se- plying the principles of open source to other lected project participants are subjected to trial- fields, including biomedicine and agriculture. and-error testing in diverse use environments, The term open source is sometimes used very and the resulting information influences further broadly to mean any approach to intellectual asset development. This mode of production has been management that entails a higher level of trans- termed “the bazaar” and is also known as collective parency, or greater access to information, than is or -based peer production.2 usual in a proprietary setting. This broad use of In order for open source software develop- the term is of little value to IP managers because ment to work, would-be users and developers it is too imprecise. must be authorized to access the source code. In

Hope J. 2007. Open Source Licensing. In Intellectual Property Management in Health and Agricultural Innovation: A Hand- of Best Practices (eds. A Krattiger, RT Mahoney, L Nelsen, et al.). MIHR: Oxford, U.K., and PIPRA: Davis, U.S.A. Available online at www.ipHandbook.org. © 2007. J Hope. Sharing the Art of IP Management: Photocopying and distribution through the Internet for noncommer- cial purposes is permitted and encouraged.

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the conventional “proprietary” approach to soft- The OSD’s definition could be summed up even ware development, source code is not freely avail- more concisely: in open source software licens- able for two reasons: (1) source code is treated ing, anyone, anywhere, and for any purpose must as a and (2) the original expression be allowed to copy, modify, and distribute the contained in a program’s source code is subject software (either for free or for a fee) and, there- to protection. To enable open source fore, must be allowed full access to the software’s development, therefore, the software owner must source code.6 (1) refrain from keeping the source code secret and (2) grant an IP to others so that they 2.2 The definition (FSD) have the legal right to access and manipulate The OSI is not the only de facto standard-setting copyright-protected aspects of the code. body in the field of free and open source soft- Open source licensing should not, in theory, ware licensing. Others include the Free Software pose any antitrust problem (at least in jurisdic- Foundation (FSF)7 and the Debian Linux tions where the relevant test takes into account community8. substantive effects on competition), because its According to the FSF’s Free Software effects are fundamentally pro-competitive.3 Definition (FSD), software “freedom” is the freedom to use, copy, study, modify and redis- tribute both modified and unmodified copies 2. WHAT IS Open source? of software programs, all without having to pay for or otherwise obtain specific permission. To 2.1 The open source definition (OSD) give practical effect to this freedom the licensor An open source is one that con- must allow users access to the software’s source forms to the latest version of the open source defi- code.9 nition (OSD), published on the Web site of the Clearly, the FSD is very similar to the OSD. (OSI), a nonprofit cor- There are ongoing debates about the differences poration established in 1998 by a small group of between what constitutes free software and open programmers who wanted to promote the wider source software, but in fact the two are virtually adoption of open source .4 Licenses that identical: with very few exceptions, free software conform to the OSD are permitted to carry a reg- conforms to the OSD, and open source software istered certification mark. conforms to the FSD.10 A summary of the requirements of the OSD is that in order for a software license to be open source, licensees must be free 1) to use the soft- 3. The process of developing ware for any purpose whatsoever; 2) to make cop- a licensing strategy ies and distribute them without paying royalties Open source licensing is just one kind of IP to the licensor; 3) to prepare derivative works and strategy. Figure 1 depicts the process of choosing distribute them, also without payment of royal- which licensing strategies (if any) to use. ties; 4) to access and use the source code; and 5) The first thing to do when formulating an to use the open source software in combination appropriate strategy for exploiting new technol- with other software, including proprietary (that ogy is to make a careful cost-benefit analysis of all is, non-open source) software.5 An open source the possible avenues for development. license may not restrict the number of products This analysis will require certain a licensee is allowed to distribute, the identity or considerations: geographic location of the recipients, or the price • The first decision. If the technology is to the licensee asks them to pay. Optionally, these be disseminated rather than kept in-house, same guidelines may be stipulated to apply to cer- resources must be committed to market- tain improvements or other downstream uses of ing the technology, demonstrating and the original software. improving its usefulness, and establishing it

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within extended research and development born out of altruism or ideology: it can in- networks.11 stead be born out of healthy self-interest. • The second decision. If an innovator de- • The third decision. If an innovator decides cides to disseminate the technology, it is on a nonproprietary strategy, the innova- not always advantageous for him or her to tion can be licensed on an open source basis restrict public access to it. Sometimes, an in- or placed in the public domain: that is, the novation can be freely offered to the public innovator can refrain from obtaining any and still generate at least as much economic IP or other property rights at all. Licensing advantage for the innovator as would a pro- an innovation is costly and time-consum- prietary strategy. Nonproprietary strategies ing and should be considered only if there can be more advantageous to the research is good reason to obtain or retain owner- community, society as a whole, and the in- ship of the technology. novator. Open source licensing generally • The fourth decision. After choosing an creates fewer transaction costs and is inher- open source approach, an innovator must ently more transparent than a proprietary choose between an academic open source licensing strategy. The decision to follow a license and a copyleft-style license (both nonproprietary strategy does not have to be terms are defined in a later section). If the

Figure 1: Decision Tree to Determine the Type of License

New Technology

Disseminate Keep in-house

Non-proprietary Proprietary

Public domain Open source

Academic/BSD-style Copyleft license license

Narrow copyleft Broad copyleft obligation obligation

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main objective is to encourage widespread In some contexts, claiming over an adoption of the technology in its current innovation may also create a negative effect with state, the more permissive academic license respect to ongoing collaborations. It may create is likely to be preferable. If the main objec- ill will among prospective users and decrease the tive is to guarantee access for the innova- chances that a technology will be widely adopted tor or others to improved versions of the or improved. Such negative effects are especially technology, or to other innovations built likely when the ownership claim is particularly upon it, a copyleft-style license is worth broad (as in the case of the non-coding DNA se- considering. quence or junk DNA)12 or when user-de- • The fifth decision. If the innovator de- velopers have a strong belief that the technology cides on a copyleft-style license, the final ought to be in the public domain (as in the case decision must be how broad or narrow of human genome project sequence data).13 the copyright obligation is to be. The nar- rowness or broadness of a copyright ob- 4.2 The advantages of open ligation may be thought of as the reach source over public domain of the copyleft “hook.” Although the dia- There are several circumstances in which an open gram depicts this decision as a binary one, source strategy might have advantages over a pub- in fact, possible formulations of copyleft lic domain approach as a way of encouraging the obligations form a spectrum. The reach of widespread adoption and ongoing development the copyright hook should be dictated by of an innovation. the licensor’s assessment of prospective li- One situation in which an open source ap- censees’ incentives to contribute to ongo- proach may be useful is where inventors have au- ing development. tomatic ownership rights over some part of the relevant technology. Some biological innovations This remainder of this chapter will explore incorporate tangible material components (such the nonproprietary options that are available to as cell lines or germplasm) that are owned by the the innovator, with a special emphasis on the var- inventor regardless of whether active efforts are ious types of open source licensing. made to protect the innovation. Similarly, soft- ware programs, data, or written protocols that are incorporated into biological innovations are au- 4. Open source versus public domain tomatically subject to copyright protection pro- Once an innovator has decided to disseminate his vided they meet statutory criteria. In such cases, or her technology in a nonproprietary fashion, he a license may help to reduce the transaction costs or she must decide between open source licensing of transferring the technology to other prospec- and placing the innovation in the public domain tive users because the license clarifies the owner’s (also known as straightforward publication): that intention to make the technology available on is, foregoing IP protection altogether. open source terms. (This is analogous to ’ objective of facilitating the dissemi- 4.1 The advantages of public nation of cultural material by helping copyright domain over open source owners to specify which rights are reserved.)14 The primary advantage of straightforward- pub A second situation in which an open source lication or dissemination of a new technology license may be preferable to straightforward pub- over an open source approach is that it does not lication from the perspective of the innovator is require the innovator to obtain or maintain IP a situation in which there is a proliferation of protection. Depending on the type of IP right, overlapping IP rights or the field of innovation is protecting IP can be costly in terms of time and especially competitive or litigious. While even an resources. It also has the disadvantage of contrib- open source license has the drawback of adding uting to the proliferation of IP rights. to the complexity of the IP landscape, failure to

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assert ownership over a technology before making alternative to abandoning the altogether. it available for public use sometimes means that In such circumstances the full cost of obtaining someone else can patent the technology and pur- and maintaining IP protection has little bear- sue a proprietary exploitation strategy to the det- ing on the decision to go open source, because riment of the innovator and other potential users. the majority of these costs have already been In this case, patenting followed by open source incurred. licensing of an innovation is a form of defensive disclosure that may be more reliable than other defensive disclosure mechanisms as a means of 5. Incentives for open protecting against subsequent patent claims. source development Third, IP ownership gives an innovator the Why would any rational, self-interested IP owner right to set terms of use and exclude anyone who decide to adopt an open source license? Many will not abide by those terms. For example, in a people think of open source licensing as an al- copyleft-style arrangement, follow-on innova- truistic exercise, or alternatively, as a strategy pur- tors must make some improvements available sued for the sake of purely personal rewards, such to others on the same liberal terms as the initial as fun or a sense of belonging to a community. innovation was made available to them. Another This is an unnecessarily limited view. example is the litigation deterrent clause found in many licenses (both open source and propri- 5.1 Direct financial incentives etary), which terminates the licensee’s rights if he An open source license must permit the shar- or she sues the licensor (for example, for infringe- ing and distribution of the technology without ment of one of the licensee’s patents). charging any royalty. In this context, a royalty is Finally, IP rights may facilitate certain path- any ongoing payment that is linked to the use ways to development even if they are licensed on of the technology (for example, a percentage of open source terms. The existence of IP protection profits on products generated using a technology, signals to potential investors that the innovator is or a regular payment whose amount depends on disciplined and has financial backing and that the the number of people who are given access to the innovation is worth supporting. technology), not a one-time payment. Therefore, although open source licensors cannot charge 4.3 Combining proprietary licensing, open royalties, they can charge a one-time fee that is as source, and public domain high as the market will bear.15 There is nothing to stop an open source licensor Of course, the fact that an open source soft- from offering a technology under both propri- ware license must guarantee its licensees’ freedom etary and open source licenses. This approach, to make copies of the licensed software and dis- known as dual licensing, generates a surprising tribute them to others without having to make amount of income for many open source software additional payments to the licensor means that programmers, some of whose customers prefer, the price of the technology tends to be driven and are willing to pay for, a more conventional down to the marginal cost of reproduction and licensing arrangement. Thus, the commercial distribution—for software, close to zero. Keep application of an open source license does leave in mind that while the inexpensiveness of open some room for recovery of the costs of protecting source software production relative to convention- the relevant IP. al proprietary production is an inherent feature It is possible to adopt a nonproprietary strat- of the open source model, the low price of open egy at a relatively late stage in an innovation’s source software to consumers (and hence the low life cycle, perhaps when the amount of propri- rate of return to licensors in the form of license etary licensing revenue the innovation generates fees) is a consequence of market forces that may begins to decline. In this case, granting an open not exist with respect to other types of technol- source license to the innovation may be a sensible ogy. For example, because the marginal cost of

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reproduction and distribution may be quite high easier to compare and verify data that originated for technologies that are less highly codified than in many different laboratories. software or are embedded in tangible objects the As the market expands, revenues from sales, production costs of which are sensitive to econo- one-off licenses, and dual licensing may be mies of scale, fewer distributors may come for- enough to offset the opportunity cost of adopting ward to compete with the original licensor, and a nonproprietary licensing strategy. At the same licensees may be more willing to pay the licensor time, the demand will increase for complemen- for extra “copies” of the technology than is the tary products and services, including technology case in the software context.16 This means that training, technical support, customization ser- there may be more opportunities for a licensor to vices, hardware or wetware supplies, proprietary profit directly from the sale of non-software -analysis software, and so on. Many successful source technologies. commercial open source software ventures turn a profit by providing complementary products and 5.2 Indirect financial incentives services. Perhaps the most striking example is that Most of the incentives for open source licens- of IBM: a substantial investment in open source ing are indirect rather than direct. Sections 4.3 software production provides IBM with access to and 4.4 describe incentives relating to cost sav- a better operating system that makes its primary ings, productivity gains, and reputational capital. commercial offering, server hardware, more valu- However, one of the most important effects of able to consumers. open source licensing is to expand the user base for a technology, thereby expanding the market 5.3 Non-financial incentives for for complementary goods and services. individual researchers There are several reasons why an open source Computer programmers are often motivated license tends to increase user numbers. In the first to contribute to open source software develop- place, a technology that is distributed according ment by incentives that are not strictly monetary to open source terms is often more attractive to (though they can be translated into monetary re- users because it is more affordable and available wards in the employment market): the possibility than its proprietary counterparts and because its of enhanced personal reputation and the oppor- availability is not dependent on any particular tunity to learn new skills.17 supply chain. At first glance, such nonmonetary benefits Next, open source technology is malleable. may seem irrelevant to the biomedical or agri- Licensees can make modifications to the -tech culture fields, where decisions about research nology and access the means for doing so. The investments are commonly made at an institu- malleable nature of the technology creates mar- tional rather than an individual level. However, kets not just for the technology itself, but also for individual researchers in both of these fields can associated maintenance services, upgrades, and decide, to some extent, how and where they will adjustments. direct their own or their laboratory’s resources. These market-expanding effects are especially Such self-determination is common for academic pronounced for technologies with strong network researchers, but is also evident in biotechnology effects (that is, technologies that become more and pharmaceutical companies, many of which valuable as more people adopt them, which in allow staff to spend some designated fraction of turn increases their popularity): this includes not their time on personal research projects in order only information and communication technolo- to encourage creativity, increase job satisfaction, gies but also many biomedical and agricultural and, it is hoped, generate new commercial op- technologies. For example, a microarray reader portunities for the company.18 Researchers with that displays data in a particular format becomes some creative freedom might decide to partici- more useful if a number of scientists use the same pate in open source development under appro- reader: the uniformity of data output makes it priate funding and employment conditions. The

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same is true for the many open source software of pre-empting such tragedies by establishing a developers who are not hobbyists but, instead, robust commons for basic or fundamental tech- professionals whose contributions form part of nologies whose value is likely to be enhanced by their employment.19 cumulative innovation. In situations where an anticommons problem already exists, nonpro- 5.4 Institutional incentives prietary strategies can have a beneficial tipping effect, because the greater the number of nonpro- 5.4.1 Intrainstitutional incentives prietary tools in any given tool kit, the greater the It is to an organization’s advantage to build a incentive of everyone in the field to invest in de- reputation for cutting-edge technological innova- veloping substitutes for the remaining proprietary tion, and to keep its researchers sharp by allow- technologies for the sake of achieving freedom to ing them to participate in a range of projects, operate with the tool kit as a whole. regardless of their projected commercial value. Furthermore, open source development encour- ages the development of a productive, collabora- 6. Different types of tive environment. open source licenses

5.4.2 Interinstitutional incentives 6.1 Copyleft licenses In both biomedicine and agriculture, the locus of A copyleft, or reciprocal, license allows the user to innovation is often not the individual company modify and redistribute a software program at or university but the network of diverse collabora- will. The licensee’s obligation under a copyleft tions among organizations.20 Open source licens- license is to make relevant downstream technolo- ing offers a way of sharing the costs and risk of gies available to all comers (including the original technology development among many prospec- licensor) under the same terms as provided by the tive users: in other words, open source develop- original license. No one (including the original li- ment can be a form of precompetitive collabo- censor and his or her licensees) obtains any special ration. As users and developers collaborate on a privilege regarding any next-generation technol- project, technological applications multiply and ogy, such as a right to preview any improvements diversify, and robust and reliable tools are created. or exclusive sublicensing rights to any improve- Bruce Perens, author of the OSD, points out that ments. The point of a copyleft license is to create the same groups of companies often have a low an ever-growing pool of downstream innovations rate of success of proprietary consortium software that remain freely accessible to all comers.23 development but a high rate of success with large However, a copyleft license is not always the open source projects; he suggests that the inher- best way for innovators to guarantee themselves ent fairness of open source licensing encourages access to future improvements in the technology. effective collaboration between parties with dif- Instead, prospective licensors should carefully ferent interests.21 consider how they can best encourage licensees to Open source licensing is not primarily a contribute to a technology commons. means of dealing with existing “anticommons When deciding whether or not to use a tragedies,” that is, bargaining failures among own- copyleft license, the innovator should take into ers of multiple complementary IP assets.22 Unless account the attitudes, needs, and constraints of the technology in question is a killer app—a prospective users, as well as the other tools that software term for any tool that renders obsolete they are likely to use in conjunction with the all others in its class—the terms on which it is technology. For example, if licensees use tools licensed, whether open source or otherwise, can that are subject to proprietary intellectual prop- have little impact on existing reach throughs, erty licenses, the conditions imposed by owners royalty-stacking provisions, and other restrictive of that intellectual property may conflict with licensing terms. Rather, open source is a means the copyleft obligation to make downstream

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innovations freely available. Furthermore, it is based on previous contributions (a phenomenon possible to trigger a cycle of cumulative innova- known in the software industry as a code fork), tion even if users do not perfectly comply with for any reason at all.24 The possibility of forking the copyleft ideal, provided there is a critical mass means that technologies can still be improved even of user-developers who do. if their initial innovators have lost interest in the A copyleft-style obligation is probably neces- technologies or have lost the capability to develop sary only if potential contributors are likely to be them. In practice, forking is rare, largely because seriously put off by the existence of free riders, it is difficult to persuade others to abandon the those who let others put in the time and mon- old project in order to start on a new one. It is ey for research and development and then help often easier for dissenters to continue working on themselves to the results. Even then, an innovator the original project and then invest some of their should take care to explain to his or her licens- own resources adapting its output to their specific ees why such an obligation is necessary. Under needs rather than abandon the original project al- no circumstances should an open source license together. However, in formulating the definition restrict licensees’ freedom to take development in of improvements in a copyleft license, the licen- new directions, with or without the licensor’s ap- sor (or his or her agent) must avoid restricting the proval. The strength of open source is, after all, freedom to fork development. its ability to harness the creativity of diverse user- Thus, the two most important aspects ofa contributors who are allowed to work in relative copyleft-style license are: (1) the definition of freedom. “improvements” (or an equivalent term) which If it is decided to adopt a copyleft license, determines which follow-on innovations must be the licensor has two main ways of tailoring the licensed on the same terms as the initial licensed license terms to maximize the incentives of pro- innovation; and (2) the definition of “external spective contributors. Not every modification, deployment” (or equivalent), which determines improvement, or new application of a technology under which circumstances the aforementioned that has been licensed on copyleft terms must be obligation must be fulfilled. These may be ad- made available on those same terms. In the first justed by the licensor to create a copyleft license place, only derivative works that are externally that strikes the appropriate balance of incentives deployed—that is, sold or otherwise distributed to contribute to any given project. outside the boundaries of the licensee’s organiza- tion—are subject to the reciprocal obligation un- 6.2 Academic licenses der a copyleft license. Another type of open source license is the aca- Second, even if a downstream innovation is demic or BSD-style license (named after the externally deployed, it still may not fall within Berkeley software distribution license, the old- the definition of improvements in a particular est license in the OSI’s list of approved licenses). copyleft license, because different licenses have These licenses do not require users to make ex- broader or narrower definitions. The only real ternally deployed improvements available to the check on the licensor’s discretion with respect licensor on the same terms as the original tech- to the breadth of this definition, apart from the nology; in some cases, the downstream user’s willingness of other contributors to accept the only obligation is that he or she must give the license terms, is the scope of the licensed intel- innovator credit for the innovation. According to lectual property. A licensor who seeks to control Larry Rosen, the difference between copyleft and that which he or she does not own may run afoul academic open source licenses is that the former of competition laws. are employed by generous sharers of IP freedoms, In this connection, a trap for would-be whereas the latter are employed by generous do- copyleft-style licensors to be aware of is that an open nors of IP freedoms.25 source license must grant the licensee the freedom An academic license can achieve some of the to create a new collaborative-development project goals of open source as effectively as can a copyleft

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license. Indeed, where the licensor’s primary goal the international haplotype mapping (HapMap) is to encourage widespread adoption of the ini- project,29 the Biobricks Foundation,30 Tropical tial innovation, an academic-style license may be Diseases Initiative (TDI),31 Science Commons,32 more effective because a copyleft license could and Biological Innovation for Open Society deter potential licensees who want to be able to (BIOS).33 commercialize their own improvements on a pro- Many open source software licenses are prietary basis. drafted as generically as possible so that as many people as possible can use them, as templates, for as little cost as possible. It would be helpful, of 7. Open source in fields course, if the life sciences had open source prec- other than software edents or template licenses—or, for that matter, Although most of the examples given here come a voluntary licensing standard, equivalent to the from the software industry, the principles of open OSD, or a set of best-practice guidelines. Such source can be applied to other fields as well. Open tools would not only help prospective licensees source technology could be especially useful in decide whether a biomedical or agricultural tech- niche markets that are too small to be profitable nology license is genuinely “open source”(thereby for companies that make off-the-shelf, proprietary helping them judge whether it is likely to achieve technologies. Importantly, open source technolo- the positive collaborative outcomes for which gies can be tailored to serve small agricultural and open source licensing is valued) but would also pharmaceutical markets in developing countries help prospective licensors set universally benefi- (where small may refer either to the numbers of cial terms for technology transfer. potential users or the amount that potential users These tools, however, do not yet exist. In can afford to pay). developing such tools, the biomedical and agri- cultural research and development communities 7.1 Biological innovations could learn a lot from the experiences of software Open source can have a place even in fields domi- developers. However, it may turn out that bio- nated by proprietary strategies, such as the life technology—which is a far more technologically sciences. Open source tools are important—and diverse field than computer programming, and growing ever more important—to life sciences re- which relies on expensive, time-consuming, and search and development. Many of the most valu- complicated patents rather than automatic no- able and widely used enabling technologies in the cost —simply does not lend itself to field are bioinformatics software programs,- li the use of template licenses. censed on terms that are open source in the strict- Therefore, for the present, at least, IP manag- est sense. A good starting point for readers inter- ers should be wary of uncritically imitating ex- ested in exploring the possibilities of open source isting attempts to formulate open source licenses software for biomedical and agricultural applica- for non-software technologies, both because these tions is the Web site of the Open Bioinformatics licenses are not generic enough to be appropriate Foundation.26 in all contexts and because some may not truly What about open source licensing for non- embody the principles that make open source software biotechnologies? Starting as early as 1999, work. Instead, prospective licensors and their ad- a variety of life-sciences initiatives have conscious- visors should develop tailored strategies. ly adopted one or more open source principles in attempts to overcome some of the challenges 7.2 Examples of open source in posed by an increasingly complex IP landscape. molecular diagnostics These initiatives include a Canadian proposal for The following examples reveal how open source a General Public License for plant germplasm,27 a licensing could be advantageous in both the pub- draft license (never adopted) for human genome lic and the private sector even outside the soft- project sequence data,28 the data access policy of ware context.

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7.2.1 Case #1: A nonprofit setting developing and patenting new technologies, the Suppose that a clinical scientist working in a not- company generates more revenue through patent for-profit setting (a university or hospital labora- licensing. Second, the company’s research agenda tory) discovers a genetic mutation that seems to enhances the company’s reputation as a high-tech correspond with the occurrence of an inherited organization, which in turn attracts new cus- disease in one of his or her patients’ families. tomers. Because of its small size, the company’s Using standard molecular biology tools, the sci- stand-alone research capacity is limited, so it entist creates a diagnostic test and confirms the makes a point of pooling resources with other discovery. Imagine that the diagnostic test is pat- research organizations. However, competition is entable, but, because there are probably tens or fierce among small companies that want to forge hundreds of mutations associated with the dis- alliances with the most desirable partners from ease, the new test will detect only a fraction of industry and the nonprofit sector, so our imagi- these mutations. As a result, the test has limited nary company is always looking for ways to en- value. hance its capacity for cutting-edge research and Clearly, the of this diagnostic test— to advertise its excellent track record of scientific and hence the utility of the service the scientist’s collaborations. lab provides to patients, their families, and the If the genetic test mentioned above were to community as a whole—would be enhanced if be licensed under a copyleft-style license, the the new test could be combined with previously company would gain access to any new versions existing tests for other mutations associated with of the test—which are likely to be more reliable, the same disease. The utility of the new test would easier to perform, and more comprehensive than also be enhanced by increased use: the more peo- the old ones—without having to pay exorbitant ple who use the test, the more likely that systemic fees to other developers or having to deal with errors would be detected and corrected, and the restrictive licensing terms. The better the test be- greater would be the cost-effectiveness, for regula- comes and the cheaper it is for people to use, the tors, of enforcing best-practice standards for the larger the market will be for associated products test. and services (for example, test kits and genetic In this case, a copyleft-style open source li- counseling). If the company is known as the pro- cense might be the most sensible way to protect ducer of a cheap, effective test, the company’s the new genetic test. Such an approach would reputation will improve; the enhanced reputa- ensure that users do not have to pay license fees tion, in turn, will lead to greater demand for to subsequent developers in order to gain ac- its contract research services and, perhaps also, cess to the most comprehensive version of the greater demand for access to the company’s gene test. patents. Further, a better standing in the indus- try will make it easier for the company to attract 7.2.2 Case #2: A for-profit setting and keep excellent employees and research part- Suppose now that our hypothetical scientist works ners. Meanwhile, the experience of leading an for a small company that operates on a mixed-rev- open source project would give the company a enue business model. Some of the company’s rev- chance to acquire, and demonstrate, experience enue comes from the development and marketing in collaborative research. of diagnostic tests for use in hospitals, physicians’ Note that although open source develop- offices, and in the home. More revenue comes ment makes sense for the two hypothetical cases from data analysis and contract research services. outlined here, open source may not always be The rest of the revenue comes from licensing its appropriate. There are no hard-and-fast rules collection of gene patents. about whether or not the benefits of an open The inventor’s company also conducts broad- source approach will outweigh the costs, so each ranging R&D activities that are economically situation must be evaluated on a case-by-case important to the company in two ways. First, by basis.

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8. Conclusions 8 www.debian.org. For a history of free and open source Much work remains to be done before open software, see also Levy S. 2001. Hackers: Heroes of the source licensing is fully integrated into the bio- Computer Revolution. Penguin: New York; Weber. 2004. The Success of Open Source. Harvard University Press: medical and agricultural spheres, and this chapter Cambridge, MA. has done no more than scratch the surface of the 9 The free software definition is online atwww..org/ topic. Ideally, those who are interested in explor- philosophy/free-sw.html. ing nonproprietary exploitation strategies in the 10 For more information on “Debian-free licenses,” see life sciences will continue discussions that will www.debian.org/legal. eventually lead to the creation of open source 11 For a discussion of this process in the context of the standards and open source license templates. development of hybridoma technology, see Cambrosio A and P Keating. 1998. Monoclonal Antibodies: Until then, prospective licensors in the life scienc- From Local to Extended Networks. In Private Science: es must be prepared to independently interpret Biotechnology and the Rise of the Molecular Sciences the lessons of open source software licensing. n (ed. A Thackray). The Chemical Sciences in Society Series. University of Pennsylvania Press: Philadelphia. pp. 165–181 12 For a discussion on these, see, for example, Nottenburg Acknowledgements C. 2004. Analysis of “Junk DNA” Patents. Cougar Patent I would like to acknowledge the contributions of the Law: Seattle and CAMBIA. Canberra. lorac.typepad.com/ Handbook’s editors to both the style and content of this patent_blog/files/simons_patents_analysisf.pdf. article. A more comprehensive discussion of this topic is also available at http://rsss.anu.edu.au/~janeth. 13 According to Sir John Sulston, the possibility of alienating key collaborators was the main reason a copyleft-style license was not adopted for human JANET HOPE, Project Director, Co-operative Intellectual genome project sequence data. Property Management, Centre for Governance of Knowledge and Development, Research School of Social 14 See Creative Commons’ Web site, creativecommons.org. Sciences, Australian National University, Canberra ACT 15 In Larry Rosen’s words: “[W]hatever they charge for, 0200, Australia. [email protected] you only have to pay once.” Larry Rosen, Personal Communication. March 2003. 1 Thanks to considerable scholarly attention in recent 16 Codified refers to the nature of the information years, a broad consensus regarding the essential fea- incorporated into a technological artifact. Highly tures of open source development is gradually emerg- codified knowledge is organized and easily reproduced ing. A good starting point for interested readers is and transferred. Uncodified information, on the Demil B and X Lecocq. 2006. Neither Market nor Hier- other hand, consists of undeveloped and/ archy nor Network: The Emergence of Bazaar Gover- or unarticulated know-how. Any biotechnology nance. Organization Studies 27:1447-1466. that includes living material is likely to be highly 2 See E.S. Raymond. 1998. The Cathedral and the Bazaar. First uncodified because living systems are so complex. Monday 3(3); Benkler Y. 2002. Coase’s Penguin, or, Linux Similarly, a laboratory technique that can only be and the Nature of the Firm. Yale Law Journal 112:369. reliably performed after hands-on training from an experienced practitioner is also uncodified. 3 Feldman RC. 2004. The Open Source Biotechnology Movement: Is it Patent Misuse? Minnesota Journal of 17 For an empirically verified list of motivations to Law, Science & Technology 6(1):117-168; Boettinger, S. contribute to open source development, see Kim EE. and Burk, D. 2004. Open Source Patenting. Journal of 2003. An Introduction to Open Source Communities. Blue International Biotechnology Law 1:221. Oxen Associates. www.blueoxen.org/research/00007/ BOA-00007.pdf. 4 The full text of the OSD is available online at www.opensource.org. 18 Drews J. 1999. In Quest of Tomorrow’s Medicines: An Eminent Scientist Talks about the Pharmaceutical 5 Rosen L. 2004. Open Source Licensing: Software Freedom Industry, Biotechnology and the Future of Drug Research. and Intellectual . Prentice Hall: New Jersey. Springer-Verlag: New York. pp. 229–232. pp.8-11. 19 See supra note 17. 6 Rosen L., et al. 2003. Live from Silicon Valley, Views of Open Source Practitioners, p.39. In Legal Issues Relating 20 Powell WW. 2001. Networks of Learning in Bio- to Free and Open Source Software (eds. B. Fitzgerald & technology: Opportunities and Constraints Associated G. Bassett), Volume 1 of Essays in Technology Policy and with Relational Contracting in a Knowledge-Intensive Law. Queensland University of Technology School of Field. In Expanding the Boundaries of Intellectual Law: Brisbane. Property: Innovation Policy for the Knowledge Society (eds. RC Dreyfuss, D Zimmerman and H First). Oxford 7 www.fsf.org/. University Press: Oxford, U. K. pp. 251–266.

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21 Perens B. 2005. The Emerging Economic Paradigm the Ontario Agricultural College, University of Guelph. of Open Source. First Monday. Special Issue #2: Open A copy of the proposal is available from the author on Source — 3 October 2005. Online at firstmonday.org/ request. issues/special10_10/perens/index.html. 28 The proposal to publish genome sequence data under 22 Heller MA and S Eisenberg. 1998. Can Patents Deter a copyleft-style license is described by the then-director Innovation? The Anticommons in Biomedical Research. of the Sanger Centre in Sulston J and G Ferry. 2002. The Science 280: 698–701. Common Thread. Random House: London. pp. 211–213. 23 A copyleft license is formally similar to a grant-back, 29 For a post-case analysis of the HapMap data access a type of license provision that in the patent context policy, see Gitter D. 2007. Resolving the Open Source has sometimes been regarded with suspicion by Paradox in Biotechnology: A Proposal for a Revised competition authorities. See Boettiger S and D Burke. Open Source Policy for Publicly Funded Genomic 2004. Open Source Patenting. Journal of International Databases. Houston Law Review 43 (forthcoming). Biotechnology Law 1: 221. However, it is functionally 30 Baker D. 2006. Building a Fab for Biology. Scientific distinct because it requires improvements to be made American 294: 44–51; Endy D. 2005. Foundations for available on the same terms to all, thereby creating Engineering Biology. Nature 438: 449-453. a level playing field between the initial licensor and follow-on innovators. 31 See Maurer S, et al. 2004. Finding Cures for Tropical Disease: Is Open Source the Answer? Public Library of 24 Bedell K. 2004. Open Letter to Sun from Eric Raymond. Science: Medicine 1(3):e56. See also, the TDI Web site at O’Reilly ONLamp.com, www.oreillynet.com/onlamp/ www.tropicaldisease.org. blog/2004/11/open_letter_to_sun_from_eric_r.html. 32 sciencecommons.org/. 25 See supra, note 5. p.104. 33 Dennis C. 2004. Biologists Launch Open Source 26 www.open-bio.org. Movement. Nature 431:494. 27 This proposal was developed by Tom Michaels, then of

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