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Intellectual property and open source softwares

September 4, 2024

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This article has been written by Smridhi Rathour pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Both the concepts of intellectual property and open software systems are interrelated and have significant significance in the field of software development. Open source is and has been a reaction to the IP. As we use or interact with the open source, we interact with the IP. A source code that is distributed freely and the programmers can alter the code as per their need or requirement. Understanding the relationship between both of these concepts is crucial for developers, businesses, consumers, etc. However, the concept of the open software system is different from the closed software system in a way that the closed software system is protected by copyright, trademarks, patents, and other IPRs and is not allowed to edit or mould the software, whereas the open software system is open, and the developers or users can edit it in a way they like it because the code of the open software system is open for all. This article shall discuss an overview of IP and OSS and other informative things in relation to that.

What is intellectual property

Intellectual property is the legal right that creators have over their intellectual creations, which can include inventions, artistic work, symbols, names, images, etc. In the context of software, IP rights are typically protected through patents, copyrights, trademarks, and trade secrets.

Patents: Patents provide inventors with exclusive rights to their product or process for a limited period of time, typically 20 years from the date of filing. This protection allows inventors to recoup their investment in research and development and to profit from their innovation. Patents are granted by the United States Patent and Trademark Office (USPTO) after a rigorous examination process that ensures that the invention is new, useful, and non-obvious.
Trademarks: Trademarks protect brand names, logos, and other distinctive marks that identify a particular product or service. They serve to prevent confusion in the marketplace and to protect businesses from unfair competition. Trademarks are granted by the USPTO after a review process to ensure that the mark is not already in use by another business and that it does not infringe on any existing trademarks.
Trade secrets: Trade secrets are confidential business information that provides a company with a competitive advantage. They can include things like algorithms, formulas, recipes, and manufacturing processes. Trade secrets are not protected by law, but they can be protected through a variety of means, such as non-disclosure agreements and physical security measures.
Copyrights: Copyrights protect original works of authorship, including literary, dramatic, musical, and artistic works, as well as software code. Copyright protection subsists for the life of the author plus an additional 70 years. Copyrights are granted automatically upon the creation of an original work, but they can be registered with the USPTO to provide additional protection.

Open source software

Meaning

Open Software System is licensed in a way that allows anyone to use, modify, and distribute the software and its source code freely.

Open source is contrary to the closed-source software applications, such as Adobe, MS Word, etc. The creator sells the closed-source software to users, who are not allowed to make any changes or edit, enhance, or redistribute the product.

Background

Richard Stallman was a computer scientist who founded the Free Software Foundation in the 1980s. He is also known as the Father of Open Source.

The mission of this foundation was to promote the study, use, modify, enhance, copy, and redistribute the software programs. By promoting the OSS, it reduces the demand and use of closed-source software, which is also known as proprietary software.

Some common OSS:

Android
Linux
Symbian
Apache
Php
Python
Mozilla firefox

NRCFOSS (National Resource Centre for Free/Open Source Software)

NRCFOSS is an Indian government organisation established in the year 2005 through its Department of IT under the Ministry of Communications and Information Technology.

This organisation fosters the growth of free and open source software in India by conducting research, developing talent, building networks, and supporting entrepreneurship.

Additionally, it serves as the focal point for all national FOSS-related initiatives.

Key features of OSS

Flexibility of the source code

The software can be customised as per the specific needs of the developer or businesses without incurring any cost to the user that is associated with the licensing.

Easy evaluation

The source code is open and transparent, which allows the user to evaluate or analyse its competency, incompetency, bugs, or flaws.

Collaborative approach

OSS is developed and maintained wholly through open collaborations. It is developed through community involvement; contributors are from different backgrounds like companies, individual developers, institutions, etc.

Flexible licensing

Open-source software is generally released under licenses that have been authorised by OSI (Open Source Initiative). Popular examples include MIT, Apache, BSD, and GNU General Public Licence (GPL). Users are granted particular rights under these licences, including the capacity to use, alter, and distribute the program.

Facilitates innovation

OSS helps the software and the code to evolve and improve while putting in more technological efforts. It allows the developers to save time and effort by manipulating the software code that was being developed by others.

Zero to low cost accessibility

OSS is usually affordable because it is free of cost or incurs a very low cost in comparison to the other softwares like the commercial softwares and the closed source or proprietary software.

Secure and reliable

Open-source software development often involves collaboration among diverse individuals with varying skill levels. This collaborative process can sometimes introduce inconsistencies in the software code.

However, the open-source model allows other developers to review, correct, and improve the code, enhancing its security and reliability.

Understanding the relation between IP and OSS

“Open source” and “closed source” are two contrasting approaches to ownership and distribution of intellectual property (IP), particularly in the context of software.

In the open-source model, the source code of the software is made freely available to anyone. This allows users to inspect, modify, and distribute the software as they see fit. The primary motivation behind open-source software is to foster collaboration and community-driven innovation. Developers can contribute to the project, fix bugs, and add new features, which helps improve the overall quality and functionality of the software. Prominent examples of open-source operating systems include Linux and Android, while popular open-source web browsers include Mozilla Firefox and Chromium.

In contrast, closed-source software is developed and owned by a single entity or organization. The source code is kept secret, and users are typically required to pay a subscription or license fee to use the software. Closed-source software is often developed by commercial entities that want to protect their intellectual property and generate revenue from their software products. Examples of closed-source software include proprietary operating systems like Microsoft Windows and macOS, as well as commercial software applications such as Adobe Photoshop and Microsoft Office.

One of the key differences between open-source and closed-source software is the level of control users have over the software. With open-source software, users have the freedom to modify and redistribute the software, which gives them more flexibility and customisation options. In contrast, closed-source software users are limited to the features and functionalities provided by the developer, and they may not be allowed to make any modifications without violating the license agreement.

Another difference is the cost of the software. Open-source software is typically free to use, download, and distribute, as it is developed and maintained by a community of volunteer developers. Closed-source software, on the other hand, often requires users to pay a license fee or subscription, which can range from a one-time payment to a recurring monthly or annual fee.

Ultimately, the choice between open source and closed-source software depends on individual preferences and requirements. Open-source software can be a great option for users who value customisation, transparency, and community involvement. Closed-source software, on the other hand, may be preferred by users who prioritise stability, security, and professional support.

Computer software (object code and source code) and data compilations are to be protected under the Copyright Acts, as per the Amendment to the Copyright Act under the Berne Convention, 1986. Section 2(o) of the Copyright Act broadened the definition of “literary work” to include computer programs and computer databases.

Open source software creators created a twist in traditional copyright, what they named “copyleft,” which permits free use of open source software to the public and also the modification and redistribution of the source code.

Software’s source code needs to be made public before it may be copy-lefted. Software that has been made publicly available may be copyleft or not. Software must first be declared copyrighted by the owner before a condition can be added in order to make it copyleft. Everyone is free to use, alter, and distribute the source code and object code in either their original or modified form as long as the previously stated requirement is met—that is, as long as the modified version’s source code and object code are still available for distribution and modification. It is therefore free to alter the software, and anyone who distributes it again, altered or not, has to grant others the same freedom.

Open source initiative

The Open Source Initiative (OSI) is a global non-profit organisation that advocates for the open-source software movement and sets the standards for what constitutes open-source software. To be considered open-source, software must meet specific criteria, known as the OSI’s Open Source Definition (OSD).

The OSD outlines the essential freedoms that users of open-source software must have. These freedoms include:

The freedom to run the program for any purpose.
The freedom to study the source code and make modifications.
The freedom to distribute copies of the software, both modified and unmodified.
The freedom to distribute the software with other software, either free or proprietary.
The freedom to use the software in any field of endeavour.

In addition to these freedoms, the OSD also requires that open-source software licenses be non-discriminatory, technology-neutral, and free of any restrictions that would prevent the software from being used or distributed in a particular way.

The OSD is widely recognised as the authoritative definition of open-source software. It is used by software developers, distributors, and users around the world to determine whether a particular software license qualifies as open-source.

The OSI also provides a certification program for open-source software licenses. This program allows software developers to submit their licenses for review and approval by the OSI. If a license is approved, it is added to the OSI’s list of certified open-source licenses.

The OSI’s certification program helps to ensure that open-source software licenses are compliant with the OSD and that they meet the highest standards of quality. It also provides software developers with the assurance that their licenses will be recognised by the open-source community.

Limitations

Open source incentives are not equally effective for every endeavour. For this reason, open source’s shortcomings in providing some components like documentation or tech assistance can hinder otherwise worthwhile projects.

According to Henkel and Tins (2004), the most frequently mentioned barrier to embedded Linux (57.5%) is a lack of documentation. In a similar vein, Gambardella and Hall’s (2005) paper makes the case that open source incentives are ill-suited for compiling knowledge in an approachable manner.

While open source promotes collaboration, it also complicates IP management. With multiple contributors, tracking and protecting individual rights becomes challenging. Data modelling is crucial for efficient project management. However, it may require a lot of time and complexity. For developers to successfully arrange data, substantial preparation and experience are required to be intricate and laborious. For developers to successfully arrange data, substantial preparation and experience are required. It may have a few security concerns, but it is community-driven so the open source projects may face security vulnerabilities.

Conclusion

Thus, with the upsurge in open source software, intellectual property is also becoming popular. Intellectual property is important because it protects the rights of authors, developers, or the contributors of the software. Open source software development is sometimes seen as a defect of intellectual property protection because it does not ask for the disclosure of source code. Also, the management of intellectual property in open source becomes a difficult task sometimes. But keeping in view and understanding the problems and challenges faced by the users and developers, effective strategies must be implemented that will negate these problems successfully.

Intellectual property and open source softwares

Introduction

What is intellectual property