UNLOCKING KNOWLEDGE : THE CLASH BETWEEN INTELLECTUAL PROPERTY RIGHTS AND OPEN SOURCE IN THE DIGITAL AGE

INTRODUCTION

In common parlance, the term ‘digital age’ refers to the current era where digital technology has become a pervasive part of our everyday lives. This age is characterised by the widespread use of the internet which has impacted the way we learn, shop, communicate and think. During the digital era, or the information age, information is disseminated, produced and reproduced through the medium of the internet and information and knowledge are predominantly in digital form. Along with this dynamic and novel form of knowledge creation, comes new challenges for Intellectual Property and its goal of upholding and protecting the integrity of original creations. Monitoring and policing the use and distribution of protected works in this new era has become a convoluted process as the possibilities of the internet are endless.

The need for Intellectual Property Rights can be characterised by 4 philosophical theories. To begin with, the Utilitarian Theory proposed by JS Mill states that IP laws are justified because they incentivise innovation and creativity, which in turns benefits society as a whole, granting the greatest happiness for the largest number of people. Building on this idea of innovation and therefore closely related to the Utilitarian Theory, John Locke and the labour theory states that individuals have a natural right to own the fruits of their own labour, and by extension, have a natural right to the intellectual property of their creations. Expanding on the personal dimension of ownership, the Personality theory by GWF Hegel underlines the fact that property is an extension of an individual’s personality and essential for one’s personal development and therefore protecting these creations allows individuals to maintain a connection to their personal expressions. Finally, Jeremy Bentham and the social planning theory takes a broader societal perspective, stating that society can foster an environment conducive for creativity, innovation and equitable distribution of resources, by strategically allocating IP rights.

Despite their different emphases, what all of these theories have in common is the rationale that people have the right to their own creations all while attempting to create a society that fosters growth and innovation. So how exactly does this interplay of interests transpire in the digital era?

WHERE THE PROBLEM LIES

Courts often try to balance the rights of creators with the public’s right to access information and creative works. It is only when society as a whole has equitable access to knowledge and information, can that information then be built upon and create better ideas and innovation. This underlying idea of free access to information and knowledge is essential to the understanding of open access and open source models. Consumers of open source models, or more specifically software, can freely distribute (with/ without payment), modify and distribute derivative works using the open modification principle. The only limitation with the open modification principle is that copies being distributed, being the original or derivative works, have to be licenced in a manner consistent with the original licence. The main principles governing open source and its distribution are the open distribution and modification principle as elaborated above, and the generational limitation principle. The generational limitation principle states that those people who receive copies of works that are open source must themselves be able to redistribute the original and make derivative works from the original, provided that others are allowed to do the same. Open source is a concept that specifically caters to software and software related products, and is not to be confused with open access. While open source refers to something that people can modify and share because the design and is publicly accessible, open access on the other hand is the practice that engages with scholarly articles and research and makes it freely available to those who want to read it. Open source software is largely characterised by the type of licenses that are attached to it. While there are over 80 variations of these licenses (MIT, BSD, GPL), they generally fall into one of two primary categories : copyleft and permissive licenses. The Open Source Initiative, the leading voice on policies and principles of Open source, has a list of over a 100 distinct licenses that can be used to further license open source software, however due to the large number and various types of licenses which all have their own terms and conditions, as well as cater to different needs of users, there is a large potential grey area surrounding this when it comes to IP infringement, specifically copyright misuse and license incompatibility.

While open source was a phenomenon that wasn’t widely accepted by corporations and software developers due to its unprofitable nature, it was this exact obscurity that made litigation difficult . However once it entered the mainstream domain of software users, coupled with the information era, the likelihood of infringement and threat of litigation skyrocketed. This tension came to a head in the landmark case of  SCO Group’s Lawsuit against IBM for alleged patent infringement with respect to Linux OSS. The case dealt substantially with the question of copyright infringement with regards to Open Source Software. SCO alleged that IBM’s insertion of portions of their closed source software ‘UNIX’, into LINUX, an OSS, amounted to liability on several accounts such as breach of contract, misappropriation, and IP infringement. SCO went on to accuse IBM of stealing and misappropriating its source code and using it to strengthen its own operating system, hence violating its IP rights. The reason this specific lawsuit sent shockwaves through the software and technology industry was because it posed a significant challenge to the open source movement by aiming at the intellectual property of Linux. This lawsuit dragged on for over 20 years and ultimately only came to an end when SCO filed for bankruptcy in 2011. While Linux has been the subject of several lawsuits, it is this case that is still the most substantial in terms of precedent. This lawsuit wasn’t the first case that underscored the risks of open source software, in 2010, Oracle filed a lawsuit against Google , GOOGLE LLC v. ORACLE AMERICA, INC,  accusing Google of infringing on Oracles patents and copyrights by using Java APIs in the Android Operating System. While android was open source, Oracle argued that Google had used patented Java technology without permission and appropriate licensing. The Supreme Court ultimately ruled in favour of Google, stating that Google’s copying of the Java API’s included only those lines of coded that were absolutely necessary to allow programmers to put their accrued talents to work in a ‘new and transformative’ program, and was therefore a fair use of the matter in the eyes of the law.

CONCLUSION

The ultimate goal of IP protection, such as patents, is to create a system that attempts to continuously better society, allowing others to learn and grow and improve on the original ideas. As defined by WIPO, IP rights aim to strike the right balance between the interests of innovators and general public. Interestingly, this definition of IP rights captures the very essence and scope of the open source initiative, however, the arousal of creativity and innovation which should essentially form the foundation of IP protection, has failed software in a way that is truly disappointing. This disconnect is particularly evident in the software industry, where the rigid application of traditional IP regimes – especially patents – has hindered the collaborative and iterative progress that open source models have been designed to foster.

While patents protect an invention, the details of such a patent are publicly disclosed through the patent application, contributing to the overall pool of knowledge allowing others to learn from the invention and potentially build upon it once the patent expires. The open source movement aims to do the same thing by allowing people to use the source code, contribute to the overall pool of knowledge, allow others to learn and build upon the software, but in real time. In a field such as technology where the rate of growth is exponential, it is very important to have tools that allow you to grow at the same rate.

Similar to how each new generation of smartphones builds upon innovations of previous models, by incorporating user feedback, adding new features, and improving performance, the open source initiative aims to equip each subsequent user with better and more efficient tools that they can then build upon and share with the world.

Author: Illesha Jaishankar