open source software, open access and open transfer

Excluding
images, screenshots and
logos

SOURCE SOFTWARE
OPEN ACCESS
TRANSFER

Caroline B Ncube
University of Cape Town

http://kekovacs.blogspot.com/2011/05/opening-
doors.html
WSS4 CB Ncube 2012 1

Agenda

09.00 - 9.15 Group introductions
09.15 - 10.15 Open Source Software
10.15 - 10.30 tea break
10.30 – 11.30 Open Access
11.30 – 11.45 comfort break
11:45 – 12.30 Open Transfer


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

Open Source

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
http://atom.smasher.org
– 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 WSS4 CB Ncube 2012 5

What is OSS? http://www.gnu.org/graphi
cs/anfsflogo.html

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

 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


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


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://www.ubuntu.com/download

http://felix.apache.org/site/inde WSS4 CB Ncube 2012 12
Text: J Speres x.html

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

http://www.gnu.org/graphics/3dbabygnutux.html
13
WSS4 CB Ncube 2012 Text: J Speres

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)


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

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


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 24

© Inter Press Service (IPS) Photos
http://ipsphotos.photoshelter.com/image/I0000dU7Pua6aqjM


OA & publicly funded research

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

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

and OA archives or repositories.

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 WSS4 CB Ncube 2012 30

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.

Text: 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
Can archive pre-print and post-print or
Green
publisher's version/PDF
Can archive post-print (ie final draft
Blue post-refereeing) or publisher's
version/PDF
Can archive pre-print (ie pre-
Yellow
refereeing)
White Archiving not formally supported
More on colours and restrictions
or View all publishers


• 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.

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

Text: P Suber WSS4 CB Ncube 2012 36

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


Creative commons licenses


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


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

Open Transfer


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 WSS4 CB Ncube 2012 43

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

• 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


• 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

Text Feldman & Nelson

“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


Example
“Institution retains the right, on behalf of itself and all other non-profit
academic research institutions, to practice the Licensed Patent and use
Technology for any non-profit purpose, including sponsored research and
collaborations. Licensee agrees that, notwithstanding any other provision
of this Agreement, it has no right to enforce the Licensed Patent against
any such institution. Institution and any such other institution have the
right to publish any information included in the Technology or a Licensed
Patent.”

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/


Caroline B Ncube
Excluding images, screenshots
University of Cape Town and logos

caroline.ncube@uct.ac.za


open source software, open access and open transfer

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