open source software, open access and open transfer

WSS4 CB Ncube 2012 1

OPEN SOURCE SOFTWAREACCESSTRANSFER

Caroline B NcubeUniversity of Cape Town

http://kekovacs.blogspot.com/2011/05/opening-doors.html

Excluding images, screenshots and logos


Agenda

09.00 - 9.15 Group introductions09.15 - 10.15 Open Source Software10.15 - 10.30 tea break10.30 – 11.30 Open Access11.30 – 11.45 comfort break11:45 – 12.30 Open Transfer


Open Source

http://www.flintstudio.com/blog/how-open-source-software-can-easily-improve-your-business/#.ULX2UIe86_x


Traditional IP protection of software

• s 25(2) of Patents Act 57 of 1978 excludes patents for software as such

• Protected by Copyright Act 98 of 1978– s 2(1)(i): Sui generis category of work

• Owner has exclusive rights to reproduce, publish, adapt• License required to perform these restricted acts

– Regulated by s 22 of Copyright Act

Text: J Speres


End User License Agreements (EULAs)

• Often very restrictive– Limit the number of computers for use– User merely licenses – no transfer of ownership– Incorporate and go further than copyright law

• E.g. outlaw reverse engineering, prevent resale – No access to source code

• Software so licensed termed closed source software (CSS)

Text: J Speres

http://atom.smasher.org


What is OSS?

Source code = statements written in a programming language that allows the programmer to communicate with the computer using a reserved number of instructions

open source software (OSS) = software made freely available for anyone to redistribute and modify, including the source code

Free software & open source software

“Free as in free speech, not as in free beer” - Stallman

http://opensource.org/logo-usage-guidelines

Text: J Speres

http://www.gnu.org/graphics/anfsflogo.html


A program is free software if the program's users have the four essential freedoms:

• The freedom to run the program, for any purpose (freedom 0).

• The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this.

• The freedom to redistribute copies so you can help your neighbor (freedom 2).

• The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.


Benefits of OSS

Product reliability– Given enough eyeballs, all bugs are shallow – Eric Raymond– More eyes, more ideas

Tweakable No licensing costs means cheaper if not free software

– NB for the developing world– E.g. Stellenbosch University Ubuntu project

Text: J Speres


Benefits continued...

Can be designed to work on obsolete hardware– Also NB for developing world

Knowledge base expanded More secure and far less vulnerable to viruses - threats detected and patched

quickly by many eyeballs

Text: J Speres


OSS success stories Apache web server – Over 50 % market share Linux operating system – challenges Microsoft in the network server market and has

rapidly growing share of the desktop market (See Ubuntu) Many local corporates turning to Linux

– Nandos and Lewis use it on servers and in store Sendmail mail transfer agent - 75% of email routed Google Chrome browser – largest market share Android

http://felix.apache.org/site/index.html

http://www.ubuntu.com/download

Text: J Speres

13

OSS licenses

User given right to freely copy, modify and redistribute the software subject to specific license conditions

Source code must be open (made available)

All copyrights retained by licensor. OSS is not in the public domain.

GPL is the most widely used OSS license

Text: J Speres

http://www.gnu.org/graphics/3dbabygnutux.html

WSS4 CB Ncube 2012


OSS licenses continued... Prevents the licensor and licensee from redistributing under CSS licenses

Terms vary: GPL, Apache, BSD, Mozilla etc Copyleft (viral) Derivatives

Raises compatibility issues e.g. see http://www.gnu.org/licenses/license-list.html#GPLCompatibleLicenses

Approval of OSS licenses e.g. by Open Source Initiative (OSI) and the Free Software Foundation (FSF)

http://www.gnu.org/licenses/license-list.html


A brief comparison

criteria Apache GPL3.0

Copyleft No Yes

Copyfree No No

OSI Approved Yes Yes

Trademarks Yes No

Patent license Yes Yes


Merging OSS licenses


OSS Commercialisation

• Retain ownership of copyright– Can assign– Can license under different, CSS licence

• Dual licensing (e.g. MySQL)– Copyleft licenses required– Strong market position

• Dual product – add-ons, extension etc– Weaker market position – require OSS penetration

• Professional services– Support, customisation etc– Many users, not simple to use

See http://spacebug.com/how_to_make_money_from_open_source-html/

Text: J Speres

http://spacebug.com/how_to_make_money_from_open_source-html/


International Overview


Discussion

• Bryce Pilz PubPol 688/SI 519 - Intellectual Property and Information Law Exercise Class 08: Public License Problems

http://open.umich.edu/education/fordschool/pubpol688/fall2008/materials

http://open.umich.edu/education/fordschool/pubpol688/fall2008/materials


Open Access


Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions. What makes it

possible is the internet and the consent of the author or copyright-holder.

Peter Suber


Why OA?

• Openness – Provides access – Enables development – Enables participation – Enables innovation – Benefits the private sector – Increases researchers’ visibility– Is essential for education

Text Laura Czerniewicz

WSS4 CB Ncube 2012

OA & publicly funded research

26

The government's decision means that by 1 April 2013, all papers from government-funded research must be published in an open access journal; if not, the journal must make the paper open access after 6 months.


How?

OA journals

and OA archives or repositories.

http://www.etftrends.com/2012/01/gold-etfs-size-up-200-day-average-as-dollar-weakens/#.ULX95oe86_w

http://amazingcreativepics.blogspot.com/2010/08/blog-post.html


OA Journals

• peer reviewed and then make the approved contents freely available to the world.

• Their expenses consist of peer review, manuscript preparation, and server space.

• Various funding models: author pays, institutional support, professional body support, advertising, priced add-ons, or auxiliary services etc

• In certain cases fees waived

Text: P Suber

32

OA Archives or repositories

• OA archives or repositories do not perform peer review, but simply make their contents freely available to the world. They may contain unrefereed preprints, refereed postprints, or both.

WSS4 CB Ncube 2012Text: P Suber


• Authors may archive their preprints without anyone else’s permission, and a majority of journals already permit authors to archive their postprints.


RoMEO Colour Archiving policy

GreenCan archive pre-print and post-print or publisher's version/PDF

BlueCan archive post-print (ie final draft post-refereeing) or publisher's version/PDF

Yellow Can archive pre-print (ie pre-refereeing)

White Archiving not formally supported

More on colours and restrictions

or View all publishers

http://www.sherpa.ac.uk/romeo/browse.php?colour=green&la=en&fIDnum=%7C&mode=simple

http://www.sherpa.ac.uk/romeo/browse.php?colour=blue&la=en&fIDnum=%7C&mode=simple

http://www.sherpa.ac.uk/romeo/browse.php?colour=yellow&la=en&fIDnum=%7C&mode=simple

http://www.sherpa.ac.uk/romeo/browse.php?colour=white&la=en&fIDnum=%7C&mode=simple

http://www.sherpa.ac.uk/romeo/definitions.php?la=en&fIDnum=%7C&mode=simple&version=

http://www.sherpa.ac.uk/romeo/browse.php?letter=ALL&la=en&fIDnum=%7C&mode=simple


• When archives comply with the metadata harvesting protocol of the Open Archives Initiative, then they are interoperable and users can find their contents without knowing which archives exist, where they are located, or what they contain.

• There is now open-source software for building and maintaining OAI-compliant archives and worldwide momentum for using it. The costs of an archive are negligible: some server space and a fraction of the time of a technician.

Text: P Suber

http://voicesofglass.com/2012/02/25/square-peg-in-a-round-hole/


Copyright

• Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions. What makes it possible is the internet and the consent of the author or copyright-holder. Peter Suber

• The consent of the author or copyright holder may be given through the use of creative commons licenses- Simplifies, speeds up and frees the process

• See Journal self-archiving policies at http://www.sherpa.ac.uk/romeo/index.php?fIDnum=|&mode=advanced&la=en

http://www.sherpa.ac.uk/romeo/index.php?fIDnum=%7C&mode=advanced&la=en

http://www.sherpa.ac.uk/romeo/index.php?fIDnum=%7C&mode=advanced&la=en


Creative commons licenses


Discussion • Increasing Access to Publicly Funded Research• http://www.arl.org/bm~doc/research.pdf

http://www.arl.org/bm~doc/research.pdf


Open Transfer

http://www.lulu.com/shop/andres-guadamuz/technology-transfer-open-licensing-and-developing-countries/ebook/product-20303984.html


This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of Technology and Intellectual Property by an authorized administrator of Northwestern University School of Law Scholarly Commons.


Open Transfer: the problem

• Madey v. Duke 307 F.3d 1351 (Fed. Cir. 2002). • Prof Madey was a tenured research professor in the physics department at Duke University• sole owner of two patents in use at Duke’s free electron laser lab.• M had a dispute with Duke U and lost post as director of the lab, and then resigned.

Text Feldman & Nelson


• The lab continued to use the lab equipment• Madey sued for infringement. • At court a quo Duke claimed that any activity in the lab was covered by the common law

experimental use exception. • On appeal to the Federal Circuit held that the experimental use exception does not apply

when an entity is engaged in commercial activity that furthers its legitimate business objectives


http://ipkitten.blogspot.com/2006/08/patents-and-experimental-use.html


• For a university this includes educating and enlightening students and faculty, as well as increasing the status of the university, luring lucrative research grants, and attracting faculty and students.

• Therefore exception not applicable (in the US)!• NB in many jurisdictions (e.g. South Africa) this exception probably does not exist in the first

place



• So university researchers (in US and other jurisdictions) in theory would be forced to navigate the maze of patent licensing or face infringement suits.

• Solution : include Open Transfer clauses in technology transfer agreements



“Universities should consider reserving rights in all fields of use, even if the invention is

licensed exclusively to a commercial entity, for themselves and other non-profit and

governmental organizations: to practice inventions and to use associated information

and data for research and educational purposes, including research sponsored by

commercial entities; and to transfer tangible research materials (e.g., biological

materials and chemical compounds) and intangible materials (e.g., computer software,

databases and know-how) to others in the non-profit and governmental sectors”

• In the Public Interest: Nine Points to Consider in Licensing University Technology (White Paper 2007) http://otl.stanford.edu/documents/whitepaper-10.pdf

http://otl.stanford.edu/documents/whitepaper-10.pdf




Example

“Institution retains the right, on behalf of itself and all other non-profitacademic research institutions, to practice the Licensed Patent and useTechnology for any non-profit purpose, including sponsored research andcollaborations. Licensee agrees that, notwithstanding any other provisionof this Agreement, it has no right to enforce the Licensed Patent againstany such institution. Institution and any such other institution have theright to publish any information included in the Technology or a LicensedPatent.”

In the Public Interest: Nine Points to Consider in Licensing University Technology (White Paper 2007) http://otl.stanford.edu/documents/whitepaper-10.pdf



Discussion

• How is open transfer impacted by IP commercialisation legislation?• Consider s11 of South Africa’s Intellectual Property Rights from Publicly Financed Research

and Development Act of 2008


Attribution• Jeremy Speres ‘Open Source Software Licences’ (presentation)• Jeremy Speres ‘Open Source Licensing Scheme’ • Peter Suber ‘A Very Brief Introduction to Open Access”

http://www.earlham.edu/~peters/fos/brief.htm• Laura Czerniewicz ‘Demystifying Open Access’ (presentation) 22/10/2012

• All screenshots, images and logos used purely for illustrative purposes

This work is licenced under the Creative Commons Attribution-Share Alike 2.5 South Africa License. To view a copy of this licence, visit

http://creativecommons.org/licenses/by-sa/2.5/za/

http://www.earlham.edu/~peters/fos/brief.htm

http://www.earlham.edu/~peters/fos/brief.htm

http://creativecommons.org/licenses/by-sa/2.5/za/


Caroline B NcubeUniversity of Cape Town

[email protected]

Excluding images, screenshots and logos

open source software, open access and open transfer

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