Free and open source software in Argentina PABLO WEGBRAIT1∗ SUMARIO: 1. lntroduction. 2. Free or open source? 3. Is access to sotfware a constitutional/hu- man rignt under Argentine law? 4. Legal regime. 5. Foss in the Argentine governmental sector. 6. Enforceability of foss viral licenses under Argentine law. 7. A buoyant third sector. Conclusions 1. INTRODUCTION As in other parts of the world, free and open source software (FOSS)2 has been gain- ing acceptance in Argentina over the past years. FOSS differs from proprietary software. A proprietary software company devotes substantial monetary and human resources to develop computer programs. The “core” of those programs is the source code, its “written” part, which may be read by the human user3. Under a proprietary scheme, rights to the source code -which are protected under trade secret statutes, and copyright laws and treaties-, may only be modified by the author or rightholder, or with their consent. The rationale behind this business model is that mon- etary gain results from selling the software because, if users had access to the source code (or if they could freely reproduce it), they would not buy it from the software developer, who would not recoup its investment. Under the proprietary scheme, the software user acquires a license to use the program for only one computer terminal (as a general rule), and must pay for additional licenses for further use of the software. Moreover, the user may not access the source code in order to study how it works and/or to detect flaws. On the contrary, under the FOSS model, users may access the source code in order to see how it works and/or to improve it. In addition, any improvements to the source code 1 The author wishes to thank Professors Carlos Correa and Lea Bishop Shaver for their thorough review and comments during the preparation of this paper. 2 Even though in this work I shall refer to free and open source software as “FOSS”, I will sometimes treat them separately as “free” and “open source” software”, taking into account the differences between both movements explained below. 3 The “object code”, instead, can only be read by the computer. Object code is the code produced by a compiler (a program that translates source code into object code). As expressed, programmers write programs in source code, which consists of instructions in a particular computer language. Computers, however, can only execute instructions written in a low-level language called machine language. To get from source code to machine language, the programs must be transformed by a compiler. The compiler produces an intermediary form called object code, which is often the same as or similar to a computer’s machine language (see: http://www.webopedia.com/TERM/o/object_code.html and http://www.webopedia. com/TERM/c/compiler.html). Anuario Andino de Derechos Intelectuales. − 123 − Año VII - N.º 7. Lima, 2011 ANUARIO ANDINO DE DERECHOS INTELECTUALES DERECHO DE AUTOR must be given back freely (as we will see, not freely in the sense of “no compensation”, but freely in the sense of freedom to access, study, improve and modify the software). At first glance, it may seem that no monetary gain results from the FOSS model. However, nothing could be further from the truth, because the “free” element in FOSS only means that access to the source code must be free, but it does not prevent commercial enterprises from providing paid ancillary services such as software development, implementation, training and support. For a developing country like Argentina4, avoiding the cost of proprietary software licenses may represent substantial savings for a budget-constrained public sector, also furthering broader access to education, in an era when digital learning should certainly form part of any curriculum.5 It has been further underlined that FOSS implies savings in the development of non-differentiating factors, such as operating systems. Software is made up of a se- ries of components, non-differentiating and differentiating. Only the latter represent a competitive advantage for the software developer. While in an open model such as FOSS competitors may collaborate in the development of non-differentiating factors, in proprietary settings competitors shall work separately on non-differentiating factors, which may result in an unnecessary duplication of efforts. In the case of FOSS, col- laborative work on non-differentiating factors may reduce the total cost of ownership (TCO) of computer programs. In developing countries (like Argentina), where labor costs are comparatively lower, the TCO would otherwise be allocated to payment of proprietary software royalties. In addition, for developing countries it may be more advantageous to build on existing open software platforms as a means of encouraging budding companies (Rizk / El-Kassas: 2009). Moreover, the adoption of free software may contribute to programs of digital inclusion carried out by national and local governments in developing countries. Considering that free software costs less, it may provide a much greater outreach for those programs. Moreover, free software represents an easily sustainable model for the dissemination of information and communication technologies in developing countries (UNCTAD: 2004). 4 See page 376 of the United Nations Human Development Report 2007/2008, where Argentina is classified as one of 137 developing countries; available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Com- plete.pdf. 5 It is noted that the dissemination of information technologies depends on three basic conditions: (i) access to certain equipment, software and digital information on the part of users, (ii) the acquisition of the necessary equipment and software, and (iii) the creation of efficient information technology use capabilities (Correa: 1999). It could be argued that the cost savings generally resulting from FOSS use enables broader access to information technologies, particularly crucial for developing countries such as Argentina. Furthermore, on July 24, 2009, the MERCOSUR summit held in Asunción, Paraguay, issued a declara- tion favoring free software, proposing MERCOSUR governments to adopt policies fostering free and open technologies such as free software (which guarantee “digital inclusion”), as well as information and communication technology policies in public education that protect regional technological sovereignty, through the use of applications based on free software and non-paid access to web-based resources (see: http://www.solar.org.ar/spip.php?article617). The MERCOSUR is a common market formed by Argentina, Brazil, Paraguay and Uruguay (see: http://www.mercosur.int). − 124 − FREE AND OPEN SOURCE SOFTWARE IN ARGENTINA DERECHO DE AUTOR Under the TRIPS Agreement, software is copyright-protected. Section 10.1 of TRIPS establishes that “Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)”. The consequence of assimilating software to literary works under the Berne Convention is that it will be subject to the bundle of exclusive rights classically recognized to authors or right holders under copyright or authors’ rights6 laws, including the right of reproduction, public communication and transformation. FOSS proponents (the free software movement in particular) consider that software should not be subject to those exclusive rights (basically expressed in practice as control over the source code) because software progresses more efficiently when created collaboratively, that is, when one or more programmers work on a computer program, then make available the results with no access restrictions, other programmers improve the work and, in turn, give those results back (again with no access restrictions) to the original programmer(s) and to the community in general. Argentina only introduced software protection into Law 11,723 in 1998, before the end of the transitional period established for developing countries in Section 65.2 of the TRIPS Agreement. Prior to that, there were only limited rules available for software pro- tection, as explained below. In order to address the topic of this paper, I will first make a general introduction about FOSS (in particular, the difference between “free” and “open source” software). Next, I will analyze provisions included in the Argentine Constitution and in human rights instruments ratified by Argentina, which may be helpful for the furtherance of FOSS. I will then turn to the Argentine legal regime applicable to software in general (which mainly addresses proprietary software, but does not pose any explicit obstacles on FOSS), and I will also mention FOSS legislation in Argentina indicating that, even though the national Congress has not adopted specific FOSS legislation so far, some Argentine provinces have adopted laws and administrative resolutions, which may serve as a background for future federal legislation. I shall also refer to civil law provisions that may, despite the absence of FOSS-specific legislation, enable the enforcement of FOSS viral licenses (an element without which the growth of the FOSS movement would be seriously hampered). Finally, I will refer to what I call a “buoyant third sector” – the civil society groups which are behind much of the use of FOSS in Argentina today. In my conclusions, I reflect on the obstacles that FOSS legislation may encounter, particularly if the Argentine Federal Government adopts an official FOSS procurement policy. 2. FREE OR OPEN SOURCE? Even though they are usually dealt with together, “free” and “open source” software are not synonyms. 6 “Copyright” and “droit d’auteur” (or “authors’ rights”) should not be considered strictly equivalent expressions. Important differences exist, for example in the field of moral rights or in the attribution -in the copyright system- of original authorship to entities which are not a physical person (Lipszyc: 1993). Consequently, I will sometimes use “authors’ rights” when pointing out the differences between both systems. − 125 − ANUARIO ANDINO DE DERECHOS INTELECTUALES DERECHO DE AUTOR Free software7 is software that may be studied, run, copied and distributed freely.