WSIS2016: Software Licensing Matters – To Everybody 02/05/2016 by Monika Ermert for Intellectual Property Watch 1 Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)A special committee at the World Intellectual Property Organisation on software licensing, a globally harmonized software licence model and a dispute resolution system were among the ideas presented to the World Intellectual Property Organization (WIPO) at panel it hosted at day one of the 2016 WSIS Forum meeting in Geneva. The panel, titled, “Software Licensing: Navigating a Sea of Options,” agreed on the potential of free and open source software licensing models as a tool for developing countries. The WSIS Forum is taking place from May 2-6 in Geneva. WSIS refers to the 2003-2005 UN-led World Summit on the Information Society. With software pervasiveness in just about every tiny daily activity from driving to reading the daily news to doing one’s laundry, always present licensing conditions are of concern for just about everybody. Yet everybody just clicks through all the licensing agreements and nobody ever reads them, apart from lawyers, the experts warned. “As an author of software licence I am deeply hurt that no one reads the output of my work,” said Malcolm Bain, partner at ID Law Partners. One might have sold one’s children to him, Bain joked, “which is one of the standard clauses in my licensing agreements.” User’s Rights Situation Obscure “When we talk about software contracts there is an uncertainty of what rights a client has been granted,” warned Jacques de Werra, a law professor at the University of Geneva. While people are aware of the difference between renting a car and buying one, signing a software contract could grant special rights to use. Does a client obtain full ownership or only a limited usage right? Does the user only own the physical object or also the content contained on it? he asked. What exacerbated the situation was that there was a “conflict between the pervasive use of software and fact that we still have local rules,” Werra observed, calling for an attempt to globalize a software licensing model like FRAND, for example. FRAND refers to a commitment by a company holding a standard essential patent to licence its technology on fair, reasonable and non-discriminatory terms. Such harmonisation could help with the existing legal fragmentation, he said. There was a need to translate the concept of interoperable standards development in technology to the sphere of law, he demanded. And while such harmonization was a first step, one could also consider to draw lessons from the WIPO’s Uniform Domain Name Dispute Resolution procedures (UDRP) to think of an avenue to allow to solve licensing quarrels between users and companies. There is in fact a gap in that regard in existing free trade agreements, said Marcela Paiva, Chile’s representative to WIPO and the World Trade Organization. There are alternative dispute resolution mechanisms for companies and common rules so that companies know how the systems are going to work, said Paiva. “When it comes to consumers there is nothing,” she said. In her opinion, there is a need to address the issue to clarify how end users could follow up on unfulfilled contracts. FOSS the Best Model for Developing World? Paiva listed several initiatives of the Chilean government with regard to the introduction of free and open source software (FOSS), including a 2015 launch of a public administration software repository which allowed the public sector to re-use the best applications available under free and open source licence terms for their tasks. FOSS also has been introduced in Chilean policy, she said, adding, “the only limit would be that we cannot oblige our ministries to only use FOSS.” Several members of the Chilean Parliament started an initiative that seeks to ensure that Chile’s public sector uses FOSS only, at least for basic office tasks. The move according to the group of politicians could save the administration more than 36 billion Chilean pesos annually. Affordability, adaptability to all sorts of hardware, interfaces and local user languages are aspects that make FOSS an excellent tool for a serious development agenda, said Tim Engelhardt from Free Software Foundation Europe (FSFE). Vendor lock-in is avoided and interoperability achieved quite easily due to broad deployments, due to the fact that the free and open source technology is widely developed and used. The FOSS advocate also pointed out that “in the political arena FOSS is a natural ally of open government and open data, and of supporting moves to democratization.” Another important advantage, Engelhardt said, is that people in developing countries could become creators and not mere consumers, meaning that local skills and companies could be boosted. Complexity of Licensing Models Even licensing expert Bain agreed, that the Foss models checked practically all of the boxes essential for good software licensing models, yet argued that still in some cases other, more restrictive licensing practices might be needed. Chris DiBona, director of open source at Google, explained the intricacies of the software licensing game pointing out for Google “we have every model you might want.” For Google’s mobile operating system, Android used an Apache Software licence on top of the Gnu Public License (GPL) for the Linux kernel of the OS. The Apache licence allows co-developers to be a little less permissive and for example prevent users from changing the code they added to the Android code base. Balancing issues like ease of use and openness with the possibility for developers to keep some rights over their code contribution motivated the combination. Google also wanted to make the platform agreeable to the mobile carrier industry that, according to DiBona, did not have a history of a deep understanding for free and open source licensing. The company, he said, certainly had been successful with open source strategies “when we do it from the beginning” of a project, and less successful “for only small components.” Open Source Indispensable for Critical Applications Access to the source code granted by the various open source license models, but not be the classical proprietary licensing models, becomes indispensable when it comes to critical infrastructure or sensitive applications, underlined Roberto di Cosmo, professor of information technology and director at Software Heritage. “Source code of embedded software that controls devices that deal with critical issues like health, security, pollution, finance, privacy or taxes should be at least fully disclosed to regulatory agencies,” di Cosmo requested. “Ideally they are made available to the final users as open source, to allow for independent assessment of its quality and real behaviour.” He rejected the argument that code is too complicated to be checked by the average John Doe. “Law is also complicated, nevertheless you want the law to be public,” he said. Why bother to see code one cannot understand? Easy answer, said di Cosmo: “I can hire a lawyer or expert, and what is more, I can hire the one I prefer.“ Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Monika Ermert may be reached at info@ip-watch.ch."WSIS2016: Software Licensing Matters – To Everybody" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
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