Debate on Open Source Software

Intellectual Property Debate on Open Source Software


S. No. Titles Page Number
Introduction 5
Intellectual Property Dilemma 5
Copyright Protection 7
Patent Protection 9
Trademark Protection 10
Trade Secret 10
Conclusion 11

INTRODUCTION Digitalization has led to a movement towards redefinition of poverty: poverty no longer to be identified in terms of material deprivations but in access to information in cyberspace.[1] The first United Nations World Summit on Information Society (WSIS) has recognized the links between information technology and human rights. Drahos, a renounced philosopher of Intellectual Property, categorized ‘Information’ as primary goods, stating that, it may be perhaps most important primary goods when one consider its role in one’s life, the economy and the development of knowledge, culture and its impact on power in a society.[2] Access to knowledge advocates have proven remarkably creative and successful in recent years, not only in contesting the contours of intellectual property laws, but also in identifying weakness and failures in the regime of intellectual property, spaces where new regimes for generating and managing knowledge and knowledge good might evolve. The most prominent example in the arena of activism by access to knowledge advocates relates to the attempts at the World Intellectual Property Organization to introduce new multilateral agreements to defend the rights of the visually impaired and rebalance the current copyright regime.[3] INTELLECTUAL PROPERTY DILEMMA Open source software is the paradigm shift in the field of Software development. Opposite to conventional and closed web resources, which emphasis on unrestricted accessibility to the source code of the program. Also unlikely proprietary software, open source software are not Solidarity or closed group task. It is an community based model developed through virtual interaction of communities. The open source development model is not subject to prejudice based on maturity, education or experience. Thus open source model allows larger groups to interact, and increases accessibility to many more resources, keeping transaction cost minimal. It is a misconception that open source program are placed in public domain; they are very much protected by intellectual property laws, but distributed under terms which instead of being restrictive promote access. This system of software invites programmers globally, to freely copy, share, and modify software. This way it challenges all established norms of intellectual property.[4] On another side, a primary concern is ensuring that people must at least have access to internet via free access points. Striking balance between ensuring the human right of access to information while determining appropriate legal limitations and prosecution for inappropriate use is a significant challenge. From the perspective of consumers, however, copyright in a digital environment is often experienced as an instrument primarily used to exclude users from information which was freely available.[5] There is another view that database or software can also be categorized as a derivative work as collection of work or collection of data. The main difference between obtaining protection for open source software as compilations and as collection is the test of originality. As a matter of fact, the required test of originality is imposed on selection or arrangement of the content of database but not on the content itself.[6] Usually, Copyright laws were available to protect literal and artistic work. Computer Program being a written work with utilitarian character posed difficulty to be categorized under Intellectual Property. Trade secret laws was traditional vehicle of software protection, while copyright chosen as the legislative vehicle to protect the literal expression of software. Patent law protects the technological expressions of the software while trademarks emphasis on moral rights.[7]It is not necessary that all forms of protection are available for software; developers may chose to rely on none or one or two or all of them. In a world which is turning into a global village, where book can be ordered online and shared; or where library can be found to read novel or to do research for a school project or in such circumstances wherein a book published in one country can be sent to another in matter of seconds for printing and distribution there, should not it mean that everyone benefited? Whether Internet access as a fundamental human right is also essential? However, global information society has given rise to international barriers to read for print disabled people that can and ought to be removed at the level of WIPO. COPYRIGHT PROTECTION Open source movement today is based completely upon copyright protection. It also reflects a shift in traditional notions of copyright of licensing, development and ownership. Contrary to traditional notion copyright in Open Source Software helps to promote access to information rather than restrict information by the way of licensing. It facilitates exchange of information and ideas in way that a normal copyright could not provide. Many authors and IP philosophers think that it is an imperfect use of copyright protection.[8] There are two philosophical views on copyright protection for Open Source Software. One view is broader view which provides expansive protection, bringing whole information technology range from program structure, sequence and organizations within its Scope. On other hand, narrower view limits the scope of protection by exercising the non-copyright elements before determining the computer program’s overall copyright protection.[9] The concept of Copyright was not created to protect this online information; use of copyright is not adequate. However, multiplicity of views on this topic crushed by the success of copyright law protection for these Open Source Software. The WIPO in 1996 adopted the ‘WIPO internet treaties.’ During this conference, the issue of unauthorized communication over the internet was intensely debated; but ultimate outcome is neutral. This issue is left to the national legislation to determine. As per this treaty the provisions for communications for the wireless means but limits itself in its application.[10] However, this treaty ignored to take into consideration of issues like harboring information, providing digital connections for transmission and online communications. As per Indian laws, Sec 2(w) of Information Technology Act, 2000 defines the term ‘intermediary’ includes intermediary with respect to any particular electronic message means any person on behalf of other receives, stores or transmits that message or provides any services with respect to that message. All telecom service providers, internet service providers, search engines, online payments sites, web-hosting service providers, online auction sites and cyber cafA© etc., would fall within the exemption granted under Section 79 of Information Technology Act. Section 81 of this Act gives this Act overriding effect over Copyright Act and Patent Act. The Information Technology (Intermediary Guidelines) Rules, 2011 have wide scope. It functions in a manner that the intermediaries are require to impose a set of rules and regulations on users that include a prohibition on posting infringing content online. Any person aggrieved by alleged infringing content on the internet, is therefore entitled to ask the internet intermediary to take such material down form site. However these guidelines do not provide creator of the complaint to respond to this content. They even do not provide for the intermediaries to inform the user who posted the content regarding the complaint. Intermediaries which do not comply with take down notice lose protection of safe-habour.[11] The United States is the hub for the entertainment industry that supplies content to users worldwide. Thus, its law on IP enforcement, as an ‘IP exporting’ country is based on concerns over increasing trade in and access to counterfeits as it destroys markets for originals and devices consumers. These countries see Indian Laws as protectionists.[12] PATENT PROTECTION There can be possibility of Patent protection for open source software. The arguments in favor of patent protection of open source software are mostly in favor of large corporate. These patent processes enhance collateral and negotiating power in the corporate arena. Large corporate like IBM, Phillips, Sony and Samsung have expressed interest interests in Open Source Software development. These companies maintain their traditional corporate approach as well as continue to acquire software patents. However, Software Patents threat do have an moral and economic deliberating effect on individuals and small developer companies, which are real backbone of open source innovation and proliferation. Arguments against software patents range from the procedural to theoretical. The procedural arguments vilify the patent office’s patent grants and procedure in computer software. They challenge prolonged patent term, relaxed standards of non-obviousness for building-block programs, opaque prosecution process, non-disclosure of source code, abuse of continuation fillings etc. The theoretical arguments, perceive software patents as the very ‘antitheis’ of innovation by creating an ‘anticommons’ by which large number of ‘building block’ programs become legally available. Further, software patents pose a veritable threat to open source model. If infringement of a proprietary program by an open source program, even a minimal bit is confirmed, it would essentially bring its development to an effective stop, at least in open source arena. Through license provisions, the open source software approach seeks to extend the effect of the copyleft reciprocal obligation from copyright to patent terming the concept as open patent movement.[13] Thus, the software developers also grants permission to users to practice the patents held by him, when distribution of software occurs. The work could used as it is, or improved, in which case the patent improvement would have to be licensed to the institution that holds the original patent, and from which the original work was licensed. It also provides immunity to the licensees from infringement threats. There is a fundamental difference in the treatment of improvements under copyright law and patent law. This is primarily because of the copyright owner’s statutory entitlement to control improvements, i.e., derivative works of a copyrighted work; a patent on the other hand does not have any particular right to advances. Secondly, under common law copyright protection is instantaneous as from creation but patent protection requires registration. TRADEMARK PROTECTION Using certification marks as opposed to trademarks gives recognition to the open source approach as opposed to a particular open source software product. This also avoids several hassels under trademark law like policing of the mark and ensure proper attribution while allowing greater flexibility in usage and shifting equal onus of responsibility on all the developers. TRADE SECRETS Any information which has got certain commercial value and which provides commercial advantage to the owner can be called as Trade Secret.[14] As long as certain information is kept confidential away from all others it enjoys the status of Trade Secret. Trade Secret laws were used in the early phased of computing technology, when software was individually distributed under tight contractual control. Trade Secrets were only present in common law, today we have no legislature to enforce trade sectrets. However, with technological advancement it remains no longer adequate. Open source software concept is perfectly in conflict with ideology of trade secret laws. Trade Secret laws fail to provide protection to Open Source Software. CONCLUSION Information is not scarce. There are many unique challenges that are faced in this age of information. Information is the means through which the mind expands and increases its capacity to achieve its goals, often as the result from input from other mind. With the internet today transcending all national boundaries, the protection of Intellectual Property and penalizing its infringement over the world-wide-web has become even more difficult, given the territorial nature of the grant of the intellectual property rights.Further, time necessitate that certain guidelines should be laid down for addressing Open Source Software under Intellectual Property Laws. The works which are in public domain can be protected where in its presentation, the choice, the grouping of these elements it bears the personal imprint of the author. In a nutshell, instead of focusing on the debate as a means, the focus should be on ends. The need of era is efficient and cheap software. It is unreasonable, not to encourage any capable production efforts. These both approaches need a balance to achieve development of commerce. Is any one of the Intellectual Property Protection is adequate to protect whole of the Open Source Software system? The answer cannot be objective as we have to maintain perfect balance. The Open Source concept has evolved to the broader innovative concept and the same model is being applied in other fields too. 1

[1] UPENDRA BAXI; The Future of Human Rights; Oxford University Press, Delhi; 2008 ed.; pp.234. [2] PETER DRAHOS; The Philosophy of Intellectual Property Rights; Dartmouth Publishing Company; 1996 ed.; pp. 171. [3] TANIA SEBASTIAN; ‘Copyright World’ and Access to Information: Conjoined via the Internet; Journal of Intellectual Property Rights; vol. 17, May 2012; pp235. [4]VIKRANT NARAYAN VASUDEVA;Open Source Software Paradigm and Intellectual Property Rights;Journal of Intellectual Property Rights; National Institute of Science Communication and Information Resources, CSIR, New Delhi; November 2012; vol. 17(6) pp. 511. [5] GINSBURG JANE, How copyright got a Bad Name for Itself; Columbia Journal of Law and the Arts; vol. 26(1), 2002; pp. 61. [6] NAZURA ABDUL MANAP, SITI NAAISHAH HAMBALI, PARDIS MOSLEMZADEH TEHRANI; Intellectual Creation in Database: A Superfluous Test?; Journal of Intellectual Property Rights; vol. 18, July 2013; pp. 369. [7]Ibid. [8] TANIA SEBASTIAN; ‘Copyright World’ and Access to Information: Conjoined via the Internet; Journal of Intellectual Property Rights; vol. 17, May 2012; pp235. [9] Supra Note 3. [10] Article 8 &15, World Intellectual Property Organization Internet Treaty, 1996. [11] VIKRANT NARAYAN VASUDEVA;Open Source Software Paradigm and Intellectual Property Rights;Journal of Intellectual Property Rights; National Institute of Science Communication and Information Resources, CSIR, New Delhi; November 2012; vol. 17(6) pp. 511. [12] AAKANSHA KUMAR; Internet Intermediary (ISP) Liability for Contributory Copyright Infringement in USA and India: Lack of Uniformity as a Trade Barrier; Journal of Intellectual Property Rights; vol. 19, July 2014; pp. 272. [13] BROWN C; Copyleft, the Disguised Copyright: Why Legislative Copyright Reform is Superior to Copyright Licenses; University of Missouri- Kansas City Lake Review; vol. 78(2), 2010; pp.749. [14] M.D. KRISHNA, Confidential Information and Trade Secrets, Intellectual Property Rights; Dr CB Raju Serieal Publications; New Delhi, 2006, 1st ed.

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