CHAPTER 2.6 Open Source Licensing JaneT hope, Project Director, Co-operative Intellectual Property Management, Centre for Governance of Knowledge and Development, Research School of Social Sciences, Australian National University, Australia ABSTRACT This chapter provides an introduction to open source 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 intellectual property (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 copyleft 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 Linux, 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 commons-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- book 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. HANDBOOK OF BEST PRACTICES | 10 HOPE 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 trade secret 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 copyright 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 license to others so that they 2.2 The free software 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 software license 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. Open Source Initiative (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 licenses.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- . 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 10 | HANDBOOK OF BEST PRACTICES CHAPTER 2. 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 HANDBOOK OF BEST PRACTICES | 10 HOPE main objective is to encourage widespread In some contexts, claiming ownership 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.