Open source began in the late 1970s and early 80s as a way of preserving the sharing ethos upon which early computer science was built. Since then it has grown well beyond its original scope, and now underscores the creation of many creative works.
Patent law is also directed towards a similar end, but encourages individuals rather than groups. So does the success of open source suggest patent law, as we know it, is set to change?
How dows open source work?
Software’s source code (the lines of code that make up the software) is both the “machine” that makes it work, and the instruction manual for that machine. As such it is a source of great value. But should this source code be kept under lock and key or shared with others?
Open-source software advocates take the latter view. By sharing source code with others, it’s possible to create a collaborative development ecosystem.
The Open Source Institute asserts that the benefits flowing to software products from this collaborative approach are “better quality, higher reliability, more flexibility, lower cost, and an end to predatory vendor lock-in”.
A certain “section” of the open-source movement, free software advocates, argues for the sharing of source code not because these ends justify the means, but on ethical grounds. They say society ought to encourage the voluntary co-operation of its citizens, and that “co-operation is more important than copyright”.
Open source in practice
The Linux kernel is part of a larger bundle of free and open source “GNU/Linux distributions”, such as Ubuntu and RedHat. These distributions are operating systems in their own right and are free alternatives to Windows and OSX.
Although these GNU/Linux distributions only have about 1% market share, Linux has a significant presence in government, educational and business markets. Familiar websites such as Google, Amazon, and Wikipedia all rely on GNU/Linux.
But it’s not just in the operating system that open source dominates the web. The open source Apache web server is behind about 64 per cent of all websites, with another nine per cent run by the open source nginx server.
(GNU/)Linux is just the “L” in the popular LAMP stack – a bundle of open-source products frequently used in web development. The remaining letters in LAMP refer to the aforementioned Apache web server, the MySQL database engine, and programming languages PHP, Perl or Python respectively.
Beyond the web
But open-source software isn’t limited to web development. If there’s a piece of computer software you use on a daily basis, there’s almost certainly an open-source (and therefore free) version available as well.
Need a web browser? Try Firefox or Chromium. Sick of paying hundreds of dollars for Microsoft Office? Try LibreOffice or OpenOffice or AbiWord. Want to edit photos without paying for Photoshop? Try the GNU Image Manipulation Program (GIMP).
You might even be carrying open-source software in your pocket. The Linux kernel is at the heart of Android – the open-source mobile phone operating system that runs so many smartphones and tablets, including the Samsung Galaxy Tab.
Given the success of open-source projects, it’s no surprise the open-source software model has been adopted within a range of non-software domains.
This is typically in areas where there is some equivalent “source”, or know-how which would otherwise be protected through traditional copyright. In the case of open source, sharing of this know-how is not only allowed – it is encouraged.
Creative Commons licences (under which this article and all others on The Conversation are published), grant a range of creative freedoms to literary, and other “artistic” works traditionally published under copyright.
Despite some resistance from publishers – who are quite happy with traditional copyright – the benefits to authors (such as notably increased dissemination) are leading to pressure, especially among the academic community, to “tear down the walls”.
Similar initiatives exist to open up data stored in government/public repositories.
Given the inter-reliance of software and hardware, it’s natural that an open-source approach has caught on in electronics. It’s a different creature to open-source software because the hardware itself is already available for anyone to look at.
The “open source” part refers to information about the hardware that would be needed to reverse-engineer the hardware, such as the circuit layouts, the components used and any software embedded in the devices.
Perhaps the biggest success in this context is the Arduino micro-controller – essentially an open-source computer circuit board – of which more than 300,000 units have been sold. Other examples abound, including open-source agricultural equipment and open-source DNA analysis equipment.
Open source patents?
Given its origins as a liberalisation of the copyright paradigm, speaking about open source in the patent context is tricky. While copyright protection is automatic, and free, getting a patent is a slow and expensive process. The pragmatic critic might question why anyone would invest in such a process, only to give free access to everyone else.
But if we think of open source, as Janet Hope, author of The Open Source Revolution and Biotechnology suggests, as “the basis for an analogy – the seed of an idea rather than a rigid formula for success", possibilities begin to emerge.
Rather than trying to graft “copyleft” (making a work and its derivatives free) on to patent law, it might be possible to work within patent law to promote collaborative innovation.
Software is seen by many, including open-source advocates, as an inappropriate subject matter for patents. Attempts to reconcile patent law and open source software – such as the Open Invention Network – have therefore largely been directed towards defending copyleft, rather than exploring a new patent-based paradigm.
But there are concrete examples of attempts to create collaboration mechanisms within patent law. For a start, the aviation industry has used patent pooling to promote collaboration since before the first world war. More recently, there have been a number of attempts to adapt the open source approach to the patent-rich landscape of biotechnology.
So while patent law is currently without a “patent source” poster-child, the growth of the open source phenomenon suggests that such success may be only a matter of time.
Anton Hughes is a PhD Candidate at University of Tasmania. This article first appeared in The Conversation on February 27. Republished with permission.