Open source software
Generally speaking, open-source software refers to software for which the source code (underlying programming code) is made freely available for use, reading the code, changing it or developing further versions of the software, including adding amendments to it. Open source software is often used as a general expression for many forms of non-proprietary software, which differ principally in respect of the licensing terms under which changed versions of the source code may be further distributed. Proprietary software, on the other hand, is usually understood to be software in respect of which exclusive rights are maintained, such as those flowing from copyright or patents. These rights allow to refuse access to the source code by third parties for the purpose of copying or modifying the software, or at least to control the use of the source code. Without going into the details here, there is a difference between open source software and free software, on which more details can be found through some of the hyperlinks below.
Insofar as patents are concerned, the debate focuses mainly on the question of whether patents are rather a hindrance or an incentive for the software industry. Generally speaking, opponents of software patents claim that such patents are an obstacle not only to open or free software, but in respect of the whole software industry. In their view, software patents give excessive control over the technology to patent holders, they increase cost and they block a smooth expansion of the software industry, which may only continue to evolve in an environment where software is mutually shared and jointly developed. In addition, they criticize the duration of patents in respect of software as being too long for the short life of most software. Supporters of software patents assert that the patent system encourages innovation, that there is no reason to treat software-related inventions differently from inventions in other areas and that software inventors should have the right to recuperate their investments. Some also believe that the proprietary and the open source model can coexist, and indeed, a number of companies seem to combine, in their business strategy, both open software options and a proprietary software approach.
When assessing these different models, various factors may be considered, such as how the open source solution compares to proprietary software in technical terms, what are the overall costs, or whether the compatibility with other programs and applications is satisfactory in view of the intended use.
Open source and open standards
In view of the occasional confusion between the two notions, a short explanation on the difference may be useful: While open source software, as noted above, refers to a specific software the source code of which accessible for use and re-use under certain conditions, open standards are technical specifications that fulfill certain criteria. Open source software may thus be part of the implementation of an open standard, but is not necessarily a standard itself. One definition discussed in the framework of Global Standards Collaboration (GSC Resolution 10/4) includes the following criteria: (1) The standard is developed and/or approved, and maintained by a collaborative consensus-based process; (2) such process is transparent; (3) materially affected and interested parties are not excluded from such process; (4) the standard is subject to fair/reasonable and non-discriminatory intellectual property right (IPR) policies which do not mandate, but may permit, at the option of the IPR holder, licensing essential intellectual property without compensation; and (5) the standard is published and made available to the general public under reasonable terms (including for reasonable fee or for free).
Open source in the life sciences
A number of researchers in the field of life sciences – particularly in the areas of human health and agricultural biotechnology – are developing ways of “open source” licensing of patented technology. These licensing strategies are roughly analogous to open source software development: the aim is to create a shared pool of core enabling technologies, that are free for licensees to use provided improvements to the core technology are also shared. There are some differences from software open source development, though, given the different approaches to innovation in the two sectors: for instance, open source approaches in the life sciences field may have to consider access to data on safety, environmental impact and efficacy of new organisms; the open source licensing approach may also be exercised through the licensing of genetic materials through material transfer agreements.
In open source licensing, the patent rights are not exploited through exclusive licenses, and the patents are not used directly to generate financial returns. Instead, patents and other IP on key technologies are used as the basis for a protected commons, an open licensing system that ensures ready use of the protected technologies – this includes key technologies for genetic transformation and research tools such as genetic markers. To retain legal access to these technologies, an open source license holder undertakes not to prevent other licensees from using the technology. They agree to share access to the central technology, while using it to create improvements and derivative applications. Depending on the approach, some license fees may be charged, partly for cost recovery and partly to subsidize equitable access (such as not-for-profit research and research aimed at developing country needs).
There is no single template for the implementation of this general concept. However, one example are the BiOS (Biological Open Source) licenses developed by Cambia, a not-for-profit institution promoting research and development in agricultural biotechnology for the benefit of developing countries. BiOS licenses have been developed for Plant Enabling Technologies and Genetic Resource Indexing Technologies, and a BiOS license for health technologies is under development.